Tepania v R

1. [1]

   PAYNE JA: I agree with Johnson J.

2. [2]

   SIMPSON AJA: I agree with Johnson J.

3. [3]

   JOHNSON J: By Notice of Application for Leave to Appeal filed on 30 August 2018, the Applicant, Atare Tepania, seeks leave to appeal from an aggregate sentence of imprisonment imposed at the Penrith District Court on 2 November 2017 with respect to offences of recklessly causing grievous bodily harm contrary to s.35(2) Crimes Act 1900 and assault occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900.

4. [4]

   The victim of these offences was a 10-month old boy. To give effect to the child’s entitlement not to be identified (s.15A Children (Criminal Proceedings) Act 1987), he will be referred to by the pseudonym “Mark” and his mother by the pseudonym “Anne”.

The Offences, Aggregate Sentence and Indicative Sentences

1. [5]

   The Applicant pleaded guilty to the following charges:

2. [6]

   The Applicant requested the sentencing court to take into account on a Form 1 on sentence for the s.35(2) matter an offence of common assault under s.61 Crimes Act 1900 committed upon an ambulance officer, Kate Ljubic, at Penrith on 22 November 2015 which (if prosecuted separately) would have carried a maximum penalty of two years’ imprisonment.

3. [7]

   In addition, the sentencing Judge dealt with two further offences on a certificate under s.166 Criminal Procedure Act 1985 being:

4. [8]

   On 2 November 2017, his Honour Judge Sutherland SC imposed an aggregate sentence for the s.35(2) and s.59(1) offences of five years’ imprisonment comprising a non-parole period of three years commencing on 21 November 2015 and expiring on 20 November 2018, with a balance of term of two years commencing on 21 November 2018 and expiring on 20 November 2020: R v Tepania [2017] NSWDC 435.

5. [9]

   The sentencing Judge nominated the following indicative sentences for these offences:

6. [10]

   With respect to the two matters dealt with on the s.166 certificate, his Honour dismissed both matters with no additional penalty being imposed under s.10A Crimes (Sentencing Procedure) Act 1999.

Grounds of Appeal

1. [11]

   By Notice filed on 30 August 2018, the Applicant relies upon the following grounds of appeal:

Facts of Offences

1. [12]

   A Statement of Agreed Facts was tendered at the sentencing hearing which revealed the following.

2. [13]

   As at 21 November 2015, the Applicant (then aged 23 years) resided in a unit at Penrith with his partner, “Anne”, and her 10-month son, “Mark”. The mother and the baby had been living with the Applicant for a few months and he would help “Anne” to care for the baby by feeding him and making his bottle.

3. [14]

   The Applicant also had two children from another relationship, then aged two and four years. At this time, the elder child resided with the Applicant, but on this particular weekend he was looked after by respite carers.

4. [15]

   On Saturday, 21 November 2015, the Applicant travelled to Manly to meet up with friends, Bradley Hargreaves and Blake Goodberg, and the three of them consumed a considerable amount of alcohol. At about 9.00 pm that day, they travelled to Penrith by train and met Cody Cameron. The group walked to the Applicant’s home after purchasing more alcohol. Upon arriving at the unit, the group spoke briefly to “Anne”.

5. [16]

   After chatting for about 10 minutes, the Applicant and his three companions walked to a nearby park where the Applicant showed the three men a tablet wrapped in a chocolate wrapper. At some stage during that night, the Applicant consumed more than one tablet that he believed was ecstasy.

6. [17]

   As the night progressed, the group consumed bourbon and coke and listened to music. The three men witnessed the Applicant’s behaviour become erratic as time passed. The Applicant wrestled with one of his friends and was unsteady on his feet and commenced an argument with members of the public in the park.

7. [18]

   Due to the Applicant’s behaviour, the group decided to leave the park. At this time, Mr Hargreaves told the Applicant “Shut up, you’re being annoying” and the Applicant spat into Mr Hargreaves’ face. The Applicant then swung a punch at Mr Cameron but missed and slipped over.

8. [19]

   The Applicant and his companions then walked back to the Penrith unit. The Applicant walked into his bedroom and was hugging “Anne” demanding her birth control pills saying “I want one of these”. He was trying to take the pills whilst she attempted to take them from his hands. A short time later, “Anne” was yelling “Stop it. Get off me”. Messrs Cameron, Goodberg and Hargreaves ran into the bedroom and saw the Applicant lying on top of “Anne”. The Applicant had a fist full of “Anne’s” hair and his right hand around her throat (the s.166 certificate offence of assault).

9. [20]

   The Applicant and “Anne” were separated and she fled the room. During the struggle to bring the Applicant under control, the Applicant bit Mr Hargreaves in the centre of his chest. The Applicant latched on to Mr Hargreaves and had to be punched multiple times by Mr Hargreaves until he released his bite. Mr Hargreaves left a short time later. He had a bite mark to his chest that was bleeding (the s.166 certificate offence of assault occasioning actual bodily harm).

10. [21]

    For the remainder of the night and into the morning of 22 November 2015 (when he passed out), the Applicant had to be constantly restrained by Mr Cameron and Mr Goodberg inside the unit as he was smashing items including a television and a microwave and was breaking jewellery and sweeping items off the kitchen bench. The Applicant also tried to eat a baby bracelet belonging to “Mark”. “Anne” said she had never seen the Applicant act this way before.

11. [22]

    The Applicant woke some time in the afternoon of 22 November 2015 and was still feeling affected by the alcohol and drugs he had consumed the previous night. He had urinated in his own bed whilst he was asleep.

12. [23]

    The Applicant argued with “Anne” and told her she needed to leave and go back to her home in the country. She offered to go to the shops to buy him some cigarettes and this occurred at some time between 2.30 pm and 3.50 pm that day.

13. [24]

    “Anne” left the premises on foot and walked to nearby shops leaving “Mark” in the care of the Applicant. At the time she left the unit, the baby was awake, uninjured and lying in his bed. The baby had been given a bottle of formula and was wearing a grey “onesie”. The Applicant was in the lounge room kitchen area watching television and looking through his mobile phone.

14. [25]

    The Applicant heard the baby crying and walked into the bedroom observing that the child had vomited. The Applicant picked up the baby by one arm and took him to the bathroom with the intention of washing him in the bath. It would appear that the Applicant picked up the baby by the arm in such a manner as to cause what was subsequently determined by bone scans and x-rays to be a “bucket handle fracture” to the left elbow of the child. That injury, which the sentencing Judge observed was apparently caused negligently, was not the subject of any criminal allegation: R v Tepania at [16].

15. [26]

    The Applicant put the baby into the bath still wearing a nappy, the “onesie” having been removed. He turned on the hot water bath tap, but did not place the plug into the drain. The Applicant walked out of the bathroom with the intention of having a cigarette and spent some time looking at his mobile phone.

16. [27]

    After a while, the Applicant was alerted by the loud screams of the baby and returned to the bathroom. He observed “Mark” lying on his back underneath the tap with his feet in the air in a shallow pool of accumulated water. The Applicant picked up the baby who was still screaming. The Applicant noticed that the baby’s skin was peeling off. He grabbed the infant by one arm, but lost his grip of the baby who fell on the tiled floor and struck his head.

17. [28]

    The Applicant then picked up the baby and placed him in a towel. He noticed further skin peeling from the baby and took the child back into the bedroom and placed him in his bed. The Applicant poured cups of cold water over the baby who continued to scream.

18. [29]

    The s.35(2) offence was constituted by the Applicant’s conduct summarised at [26]-[28] above.

19. [30]

    The Applicant tried to feed the baby (who was still screaming) with a bottle of formula. “Mark” would not take the bottle and spat it out multiple times as the Applicant repeatedly pushed the bottle with sufficient force to cause injuries to the inside of the baby’s mouth. Upon doing so, the Applicant saw blood coming from the inside of the baby’s mouth.

20. [31]

    The baby continued screaming and the Applicant lashed out at him by striking the child at least once to the face and head region. The s.59(1) charge of assault occasioning actual bodily harm arose from the Applicant’s conduct in forcing the bottle into the baby’s mouth (causing injuries to the inside of the mouth) and the Applicant’s separate act of striking the baby at least once to the face and head region. It was open to the Crown to charge the Applicant with a single s.59(1) offence based upon these connected acts: Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 at 273-274 [48]-[49]. The Applicant had pleaded guilty to the s.59(1) charge upon this basis.

21. [32]

    “Anne” arrived at the unit shortly thereafter and she saw the Applicant in the kitchen with a strange look on his face. The mother asked him what had happened and described him as “frozen”. The Applicant then informed “Anne” of what had happened and told her not to call an ambulance. She ignored the Applicant in this regard and made a “000” call seeking an ambulance. Upon instruction from the “000” operator, the baby was placed into a cold bath after the Applicant had already placed him in a cold shower.

22. [33]

    An ambulance arrived a short time later. Student ambulance officer Kate Ljubic arrived at the scene after the “000” call had been made. Ms Ljubic arrived with other ambulance officers. She was asked to obtain a history from “Anne” about the baby whilst he was being treated. Ms Ljubic walked into the child’s bedroom where the mother and the Applicant were located.

23. [34]

    Ms Ljubic noted that the Applicant appeared angry with fists clenched and he was rocking back and forth. Ms Ljubic said “It’s going to be fine. We are here to help”. The Applicant stood up and walked towards Ms Ljubic and said “It’s not fucking fine”. As the Applicant said this, he smashed a Lego tower with such force that it flew towards Ms Ljubic who was standing in the doorway. She feared the Lego would hit her and took evasive action to avoid being hit (the Form 1 offence of common assault).

24. [35]

    As police arrived at the unit, “Mark” was being intubated by ambulance officers. Police escorted the ambulance to Westmead Hospital with “Anne” following. Ambulance officers informed police that the baby had injuries to his head in the form of bruising.

25. [36]

    Police observed the Applicant seated in the dining room and he was cautioned. The Applicant was at that time making a phone call to the respite carer of his son who was due home that afternoon. The Applicant said “I fucked up” and “I put [‘Anne’s’] kid in the shower after he spewed up”.

26. [37]

    Detectives arrived and spoke with the Applicant who told them “I put him in the fucking shower and I didn’t turn the cold on, I only turned the hot on. I left and when I came back …”. In response to a question from a police officer as to where he had gone, the Applicant said “I went and put my phone on charge, I had a smoke too”.

27. [38]

    The Applicant was placed under arrest and, whilst waiting to be conveyed from the unit, police observed he had injuries to his knuckles. When asked about them, the Applicant said “I was a bit silly last night”.

28. [39]

    A crime scene warrant was applied for and granted. Crime scene officers attended and observed skin on the shower floor, and skin on the exterior side of the bathroom door. The baby’s bed was wet and bloodstained. A dry towel in the bathroom was stained with blood. The lounge room carpet was stained with blood. A damp blue men’s jumper was located rolled up in the corner of the lounge room.

29. [40]

    Thereafter, the Applicant took part in an electronically recorded interview during which he repeated the version he had given police but said that he did not have a cigarette, saying that his last cigarette had snapped on him so he did not smoke it.

30. [41]

    The Applicant mentioned that he was very hung over upon waking and was “frustrated” at the baby’s crying saying “He cries a lot”. When asked why he told his partner not to contact an ambulance, the Applicant said “I fucked up and I’ll lose my kid [his own son]”. The Applicant denied any knowledge of the injuries to the baby apart from the burns and stated “I didn’t touch him”.

31. [42]

    The Applicant told police he was “really hung over … really bad” and that he was “not thinking straight today”. He told police that, at the time of the interview, he was still hung over.

32. [43]

    When asked “Do you care about [‘Mark’]?”, the Applicant answered “Yeah, I fucked up, of course I care about him, yeah, I fucked up”.

33. [44]

    When asked “Would you have done the same thing with [the Applicant’s son]?”, he answered “I never have him when I’m hung over. I don’t drink around him. That’s court ordered too. I do not drink around him”.

34. [45]

    When asked by police to rate his intoxication when he got home on a scale of “one being not drunk, to ten being as drunk as you could be”, the Applicant answered “ten”.

35. [46]

    In a second recorded interview conducted by police at a later time, the Applicant told police how he had dropped the baby on the floor in the bathroom.

36. [47]

    The Applicant provided a sample of his blood and urine for forensic examination on 23 November 2015 and subsequent analysis of his urine returned a positive result for methamphetamine.

37. [48]

    The Agreed Statement of Facts recited that, according to expert opinion, water at 60 degrees centigrade can cause a full thickness burn to an infant within a few seconds.

38. [49]

    “Mark” was taken to Westmead Hospital where he was assessed and treated. His spent 26 days in hospital between 22 November 2015 and 18 December 2015. He sustained burns to approximately 40% of his body. The depth of the burns was assessed initially as between mid-and-deep dermal burns, but subsequent healing by Day 14 suggested that they were mid-dermal burns, namely second degree burns. “Mark” did not require skin grafts.

39. [50]

    The distribution and depth of the burns was held by the experts to be consistent with a scald or immersion injury. Burns to 40% of the total body surface area are potentially fatal as a result of hypovolemic shock and fluid loss if not appropriately treated. In “Mark’s” case, paediatric burns surgeon, Dr Harvey, stated that the mid-dermal nature of the burns and the ability of the burns to spontaneously heal without scarring would result in a good prognosis and no long-term follow up.

40. [51]

    “Mark” had also suffered a cut to his frenulum (tissue connecting his upper lip to the upper gum), contusions inside the mouth and in the lips and gum area. These injuries were caused by the offence of assault occasioning actual bodily harm committed by the Applicant as he forcefully pushed the bottle into the baby’s mouth. In addition, the left side of “Mark’s” head was bruised from the temple to the jaw line. There was a bruise to the right temple and to the back of his head. There was bruising over the right eye with subsequent swelling.

41. [52]

    Bone scan and x-rays showed a “bucket handle fracture” to the left-arm elbow of the baby. The Applicant told police that this may have occurred when he was lifting the baby from his bed by one arm, and the sentencing Judge so found (see [25] above). A further x-ray was undertaken to assess signs of ongoing healing which was reported as normal.

42. [53]

    Photographs of “Mark” taken soon after his admission to hospital depict the burn injuries as well as the injuries to his mouth and head as referred to in this factual narrative. Those photographs were tendered at the sentencing hearing (Exhibit B) and have been viewed by this Court for the purpose of the appeal.

43. [54]

    Following his arrest on 22 November 2015, the Applicant was charged and was refused bail. He remained thereafter in continuous custody. The aggregate sentence imposed on 2 November 2017 was backdated to 22 November 2015.

“Mark’s” Recovery and the Victim Impact Statement

1. [55]

   “Anne” made a victim impact statement at the sentencing hearing. The sentencing Judge referred to aspects of the victim impact statement in the course of his remarks on sentence (R v Tepania at [29]-[30]):

The Applicant’s Subjective Circumstances

1. [56]

   The Applicant was born in October 1992 and was 22 years old at the time of the offences and 25 years old at the time of sentence.

2. [57]

   The Applicant has a prior criminal history. On 18 April 2011, the Applicant was fined $800.00 in the Katoomba Local Court for common assault. On 4 July 2011, he was placed on a 12-month good behaviour bond in the Katoomba Local Court for common assault.

3. [58]

   On 19 November 2012, the Applicant appeared at Katoomba Local Court and was sentenced to a suspended term of 12 months’ imprisonment for reckless wounding and a 12-month good behaviour bond for affray.

4. [59]

   On 10 December 2012, the Applicant appeared at the Katoomba Local Court and was placed on a 12-month good behaviour bond for common assault.

5. [60]

   On 3 March 2014, the Applicant appeared at the Katoomba Local Court and was sentenced for two counts of common assault by way of a two-year good behaviour bond under s.10 Crimes (Sentencing Procedure) Act 1999.

6. [61]

   The present offences by the Applicant breached the conditional liberty to which he was subject as a result of the order made on 3 March 2014.

7. [62]

   The Applicant gave evidence at the sentencing hearing as did Maria Quinn, psychologist, who had prepared a report dated 22 September 2017 with respect to the Applicant. A substantial volume of documentary material was tendered at the sentencing hearing which related to the Applicant’s background.

8. [63]

   The sentencing Judge noted that the Applicant’s childhood and upbringing “had been characterised by profound disadvantage and neglect”: R v Tepania at [71], [73]. The sentencing remarks set out in some detail the Applicant’s personal history (R v Tepania at [38]ff) which supported the finding of profound disadvantage and neglect made by the sentencing Judge.

9. [64]

   His Honour referred to evidence concerning the Applicant’s intellectual impairment (at [42]-[43]):

10. [65]

    The sentencing Judge recounted the substantial efforts made by the Applicant over a number of years towards rehabilitation and good behaviour against the background of his extremely troubled upbringing. The sentencing Judge recounted (at [57]-[65]) the steps taken by the Applicant between 2013 and 2015 to stabilise his life in many respects. Having recited these matters, his Honour said (at [66]):

11. [66]

    The sentencing Judge summarised the Applicant’s personal circumstances in the following way (at [73]):

Some Findings in the Sentencing Remarks

1. [67]

   Having regard (in particular) to the first ground of appeal, it is appropriate to refer to a number of findings made by the sentencing Judge in his sentencing remarks of 2 November 2017.

2. [68]

   His Honour referred to the Applicant’s position at the time of the offences (at [74]-[75]):

3. [69]

   In passages that came under particular scrutiny in this Court in the context of the first ground of appeal, his Honour made the following findings (at [76]-[77]):

4. [70]

   Before specifying the indicative sentences and passing the aggregate sentence, his Honour explained his approach to sentence in the following way (at [84]-[88]) (emphasis added):

Ground 1 - The Sentencing Judge Erred in his Determination of the Objective Seriousness of the Offences

1. [71]

   Under the first ground of appeal, Mr Wilson, counsel for the Applicant, submitted that the sentencing Judge had erred in two ways:

2. [72]

   With respect to the complaint in [71](a), counsel noted the findings of the sentencing Judge that each of the s.35(2) and s.59(1) offences fell “within the broad mid-range of objective seriousness”. It was submitted by reference to the structure of the sentencing remarks that the sentencing Judge had excluded from the concept of “objective seriousness” matters which ought to have been taken into account in that respect, in particular the Applicant’s reduced moral culpability due to his background of profound disadvantage and his intellectual impairment.

3. [73]

   In support of this submission, counsel referred to the decisions of this Court in Biddle v R [2017] NSWCCA 128 and Yun v R [2017] NSWCCA 317. Counsel noted that neither party at first instance referred his Honour to Biddle v R and that there was no specific discussion on the question of objective seriousness during the course of oral submissions. It was submitted, however, that given the sentencing Judge’s findings with respect to reduction of the Applicant’s moral culpability, the Court ought to have taken into account that aspect in determining the objective seriousness of the Applicant’s offences and that error resulted because his Honour did not do so.

4. [74]

   With respect to the complaint in [71](b), it was submitted further for the Applicant that, particularly in light of the finding of reduced moral culpability, it was not open to the sentencing Judge to find that the Applicant’s offending was in the “broad mid-range”.

5. [75]

   It was submitted that offences of causing grievous bodily harm whilst reckless as to causing actual bodily harm contrary to s.35(2) can be committed in a very wide variety of circumstances and that, in the present case, the conduct of the Applicant in committing the s.35(2) offence was not violent, no harm was intended and harm of the severity actually caused was not contemplated. It was noted that the injuries, whilst severe, had healed completely. Had the victim not been an infant, it was submitted that the Applicant’s criminality would have been towards the lower end of the scale for offences of this type. Whilst acknowledging that the vulnerability of the victim and the Applicant’s responsibility for him significantly elevated the criminality, it was submitted that, in light of the Applicant’s reduced moral culpability, the s.35(2) offence cannot be elevated into the mid-range of seriousness.

6. [76]

   It was submitted for the Applicant that offences of assault occasioning actual bodily harm under s.59(1) may also be committed in a wide variety of circumstances. In this case, it was submitted that the Applicant’s spontaneous actions in forcing the bottle into the baby’s mouth and striking him were not capable of amounting to an offence in the mid-range of objective seriousness.

7. [77]

   With respect to the first leg of Ground 1 (at [71](a)), the Crown submitted that the Applicant’s moral culpability was properly taken into account as part of the instinctive synthesis in the process of sentencing so that no error had infected the sentencing process. The Crown submitted further that, in the circumstances of this case, the Applicant’s disadvantaged background and the evidence of his intellectual impairment was not such as to reduce the objective seriousness of the offence.

8. [78]

   The Crown submitted that, contrary to the Applicant’s submissions, the decisions in Biddle v R and Yun v R do not support the proposition that the reduced moral culpability of an offender must be taken into account in an assessment of the objective seriousness of the offence. Nor did they support the contention that the sentence would be vitiated by error if this had not occurred.

9. [79]

   It was submitted that objective seriousness and moral culpability are different concepts: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27], 139 [54]; Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 621 [57]. It was submitted that some matters which are relevant to the assessment of the objective seriousness of an offence may also be relevant to the assessment of an offender’s moral culpability, but that this did not mean that a finding of reduced moral culpability will, of itself, reduce the objective seriousness of the offence. The Crown submitted that there will be no error in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40 in failing to take into account an offender’s “moral culpability” in the assessment of the objective seriousness of the offence, provided that all relevant matters are taken into account in the determination of the sentence to be imposed.

10. [80]

    It was submitted that the sentencing Judge took into account all relevant matters in determining the sentence to be imposed including the Applicant’s disadvantaged background and intellectual impairment.

11. [81]

    The Crown submitted that the Applicant did not point to any particular aspect of his reduced moral culpability that lowered the objective seriousness of the offending. Rather, the Applicant appears to contend that the finding of reduced moral culpability should, of itself, reduce the objective seriousness of the offence. The Crown pointed to the statement in Muldrock v The Queen at 132 [27] that the objective seriousness of an offence is to be determined “without reference to matters personal to an offender” but rather “it is to be determined wholly by reference to the nature of the offending”. In the circumstances of this case, the Crown submitted that the Applicant’s deprived background and intellectual impairment were properly considered to be matters personal to him rather than as matters relating to the nature of the offending. The Crown pointed to the finding of the sentencing Judge (R v Tepania at [76] reproduced at [69] above) concerning the substantial contribution of self-induced intoxication to the offences, with that factor to be placed to one side because of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.

12. [82]

    With respect to the second leg of Ground 1 (at [71](b)), the Crown submitted that it was open to the sentencing Judge to find that each of the s.35(2) and s.59(1) offences fell within the broad mid-range of objective seriousness. It was submitted that the offences were committed against a completely vulnerable 10-month old infant by a person who was acting in loco parentis and occupied a position of trust and responsibility. The offences were committed in the victim’s home. In the case of the s.35(2) offence, the injuries suffered by the baby were severe. Although the burns ultimately healed without scarring and the prognosis was good, the Crown noted that the baby suffered burns to 40% of his body and was hospitalised for 26 days with the injuries being life-threatening in nature.

13. [83]

    With respect to the s.59(1) offence, the Crown submitted that this was a serious example of an offence of this type with the Applicant intentionally striking in anger the 10-month old baby in the area of his head and face at a time when the infant was suffering second degree burns to 40% of his body, after injuring his mouth by repeated insertion of the bottle.

14. [84]

    The Crown submitted that the necessarily evaluative exercise involved in an assessment of objective seriousness did not demonstrate error in this case.

15. [85]

    At the outset, it is necessary to observe that the s.35(2) offence carries a standard non-parole period, but the s.59(1) offence does not. This distinction requires that separate consideration be given to the two offences for the purpose of determining this ground of appeal.

16. [86]

    With respect to the s.35(2) offence, it is necessary to refer to the decision in Muldrock v The Queen and subsequent legislative amendments made to the standard non-parole period provisions following that decision of the High Court of Australia.

17. [87]

    At the time of the decision in Muldrock v The Queen in 2011, s.54A and s.54B provided as follows (emphasis added):

18. [88]

    In Muldrock v The Queen, the High Court said at 132 [27] (footnotes omitted):

19. [89]

    After considering the proper construction of s.54B(2) and s.54B(3) Crimes (Sentencing Procedure) Act 1999, their Honours moved (at 137 [50]ff) to address general sentencing principles with respect to the sentencing of mentally retarded offenders. In the course of considering the role of general deterrence in that respect, their Honours said at 139 [54] (footnotes omitted):

20. [90]

    These two paragraphs from Muldrock v The Queen have attracted considerable attention in cases which have sought to apply that decision to standard non-parole period offences. It must be kept in mind that the two paragraphs relate to different topics, the first concerning the proper construction of the statutory provisions and the second being a broader consideration of common law sentencing principles.

21. [91]

    Following the decision in Muldrock v The Queen, the New South Wales Law Reform Commission (“NSWLRC”) considered the operation of the standard non-parole period offence scheme in Report 134, “Sentencing - Interim Report on Standard Minimum Non-Parole Periods” (May 2012) as part of the Commission’s reference on sentencing. The NSWLRC referred again to this topic in Report 139, “Sentencing” (July 2013), Chapter 7.

22. [92]

    Following the reports of the NSWLRC, amendments were made to s.54A and s.54B by the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013. The amendments enacted in 2013 did not use the terms of the draft provision proposed by the NSWLRC. After amendments made by the 2013 Act, s.54A and s.54B provided (and continue to provide) as follows (emphasis added):

23. [93]

    The Explanatory Memorandum for the 2013 Bill said:

24. [94]

    In the second reading speech with respect to the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013, the Attorney General, Mr Smith, said (Hansard, Legislative Assembly, 18 September 2013) (emphasis added):

25. [95]

    Amendments made by the 2013 Act extended to offences committed before the commencement of the amendment on 29 October 2013, but did not affect any sentence imposed before the commencement of the amendment: Clause 65, Schedule 2, Crimes (Sentencing Procedure) Act 1999.

26. [96]

    In approaching decisions of this Court since amendments were made to s.54A and s.54B in 2013, it is necessary to keep in mind that it is the statute in its present form which is to be considered and applied, with statements made by the High Court in Muldrock v The Queen to be considered with that important qualification in mind.

27. [97]

    A number of decisions of this Court have addressed the assessment of objective seriousness for standard non-parole period offences before the amendments made by the 2013 Act. Some of these decisions were referred to by Bellew J (Bathurst CJ and Simpson J agreeing) in Cowan v R [2015] NSWCCA 118 at [61]-[62]:

28. [98]

    The decision of this Court in Biddle v R does not refer to the amendments made to s.54A and s.54B by the 2013 Act. The arguments proceeded by reference to the decision of the High Court in Muldrock v The Queen directed to the provisions in their form in 2011. Mr Biddle had been sentenced for murder on 28 October 2011 so that his appeal fell to be determined by reference to the terms of s.54A and s.54B as they stood before the commencement of the 2013 amendments (see [95] above). The Court in Biddle v R was considering the statutory provisions as construed in Muldrock v The Queen.

29. [99]

    In Biddle v R, Hoeben CJ at CL (Price J agreeing) said at [66]-[70]:

30. [100]

    In a separate judgment in Biddle v R, Rothman J said at [121]-[125]:

31. [101]

    In Yun v R, the applicant had been sentenced by the Court of Criminal Appeal for murder on 2 June 2008. Accordingly, his case fell to be determined by reference to the pre-2013 provisions as considered in Muldrock v The Queen (see [95] above). In Yun v R, Latham and Bellew JJ referred to a number of decisions of this Court (including Biddle v R) and concluded at [46]-[47]:

32. [102]

    In a separate judgment in Yun v R, Campbell J noted the existence of the 2013 Act and continued at [50]-[60]:

33. [103]

    The task for the sentencing Judge in this case was to apply the terms of s.54A and s.54B, as amended by the 2013 Act, in sentencing for the standard non-parole period offence under s.35(2).

34. [104]

    The 2013 amendments removed the concept of “an offence in the middle of the range of objective seriousness” from the definition in s.54A(2). In its place, the standard non-parole period now represents the non-parole period for an offence “that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”.

35. [105]

    Section 54B(2), as amended in 2013, makes clear that the standard non-parole period is “a matter to be taken into account by a court in determining the appropriate sentence for an offender …”. In this way, the 2013 amendments give effect to the High Court’s characterisation in Muldrock v The Queen at 132 [27] of the standard non-parole period as a legislative guidepost to be taken into account on sentence.

36. [106]

    Perhaps curiously, this Court has not been called upon to construe s.54A and s.54B as amended by the 2013 Act. It may be that an assumption was made that the 2013 amendments did not alter materially the approach adopted in Muldrock v The Queen. However, the terms of the sections have been changed and it is for the Court to direct attention to those provisions in determining the present case.

37. [107]

    Before moving to consider these provisions, a general observation is appropriate. Assessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences. As Simpson J (Davies J and Grove AJ agreeing) said in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at 523 [71]:

38. [108]

    In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at 473 [46]:

39. [109]

    The wide range of factors which bear upon the sentencing task were noted by the High Court in Muldrock v The Queen at 128-129 [18]-[20], 138-142 [53]-[61]. The issue remains how the 2013 amendments to s.54A and s.54B leave the sentencing task with respect to standard non-parole period offences.

40. [110]

    The following propositions arise with respect to the legislation as amended in 2013:

41. [111]

    The purpose of the 2013 Act, as explained by the Attorney General in the second reading speech and in the Explanatory Memorandum, appears to have been to clarify and simplify the process of sentencing for standard non-parole period offences. The amendments were not intended to expand factors under s.54A(2) so as to include in the abstract or notional concept of a standard non-parole period features which were personal to the offender whether connected to the commission of the offence or more generally. If that was the statutory purpose, clear words would have been required to achieve it, particularly in light of the construction given to the section in Muldrock v The Queen. Further, such an approach would have created a concept of indeterminate meaning which would obscure, rather than assist, the sentencing process.

42. [112]

    In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).

43. [113]

    The concept of “moral culpability” was used by the sentencing Judge in this case and in submissions to this Court. The term “moral culpability” has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.

44. [114]

    In Muldrock v The Queen (at 140 [58]), it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.

45. [115]

    In Munda v State of Western Australia (at 621 [57]), it was said that the circumstances of the appellant being affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that must be balanced with the seriousness of his offending.

46. [116]

    In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said at 595-596 [44] (footnotes omitted and emphasis added):

47. [117]

    In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, French CJ, Bell, Keane and Nettle JJ said at 72 [70]:

48. [118]

    In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL (at 43 [177]) observed that, where a person’s mental health contributed to the commission of an offence in a material way, the person’s moral culpability may be reduced.

49. [119]

    Taking into account an offender’s moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).

50. [120]

    The sentencing Judge in this case was required to have regard to all factors required by s.54B(2), including the standard non-parole period as explained in s.54A(2). This did not require a close analysis of factors to explain the role of the standard non-parole period in this case (see [110] above).

51. [121]

    The sentencing Judge addressed a range of matters before making the finding that the offences “fall within the broad mid-range of objective seriousness” (R v Tepania at [87] at [70] above). It is necessary to read fairly, and as a whole, his Honour’s sentencing remarks.

52. [122]

    His Honour made a number of factual findings concerning the s.35(2) offence. Critically, for the purpose of this ground, his Honour said:

53. [123]

    It has not been demonstrated that the sentencing Judge failed to have regard to the Applicant’s profound deprivation and intellectual impairment. His Honour explained their role in this case.

54. [124]

    Although it was a contributing factor to the offence, the Applicant’s self-induced intoxication was a factor excluded from operating as a mitigating factor by s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.

55. [125]

    In the second reading speech concerning the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 which introduced s.21A(5AA), the then Premier, Mr O’Farrell, said (Hansard, Legislative Assembly, 30 January 2014):

56. [126]

    In R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120, this Court said at 59 [220]:

57. [127]

    To the extent that the law prior to enactment of s.21A(5AA) permitted a sentencing court to have regard to intoxication for the purpose of determining the degree of deliberation involved in an offender’s breach of the law (R v Coleman (1990) 47 A Crim R 306 at 327), s.21A(5AA) now operates to prevent self-induced intoxication operating as a mitigating factor because of its impact upon the degree of deliberation of an offender. The enactment of s.21A(5AA) meant that the Applicant’s self-induced intoxication could not assist him on sentence.

58. [128]

    It has not been demonstrated that the sentencing Judge fell into error in the manner asserted in the first leg of this ground (at [71](a)). His Honour had regard to these features of the case in making a broad finding of objective seriousness or gravity. They were not overlooked in the exercise of instinctive synthesis.

59. [129]

    With respect to the second leg (at [71](b)), it is correct to observe that a wide range of conduct may be encompassed within a s.35(2) offence. After making due allowance for all factors which bear upon objective gravity of the s.35(2) offence, I am satisfied that it was open to the sentencing Judge to find that that offence fell “within the broad mid-range”.

60. [130]

    The victim was an infant under the care and control of the Applicant. Although the s.35(2) offence occupied a relatively short period of time, a significant degree of recklessness was demonstrated by his conduct in placing the baby in a bath into which very hot water was placed. Life threatening injuries were caused to the baby although, as it happens, he has made a good recovery.

61. [131]

    In assessing the objective seriousness of the s.35(2) offence, it is important not to have regard to factors (such as the absence of intention to cause injury) which would, if they existed, have rendered the Applicant liable to conviction and punishment for a more serious offence. In the circumstances of this case, the finding made by the sentencing Judge with respect to objective seriousness was open for this offence.

62. [132]

    An offence under s.59(1) does not carry a standard non-parole period. This Court has said that it is not necessary to make a finding with respect to “objective seriousness” (using the pre-2013 s.54A(2) formula) for offences which fell outside the standard non-parole period system: Sivell v R [2009] NSWCCA 286 at [5], [32]; Georgopolous v R [2010] NSWCCA 246 at [3], [30]; R v Field [2011] NSWCCA 13 at [49].

63. [133]

    Reference was made earlier (at [107]-[108]) to applicable general law principles concerning findings of objective gravity for all offences.

64. [134]

    A broad range of conduct may fall within an offence of assault occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900: McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 at 558 [43]-[44].

65. [135]

    The s.59(1) offence in this case involved both the forceful (and misguided) acts of the Applicant in inserting the bottle on a number of occasions into “Mark’s” mouth, and also an intentional striking of the child in anger or frustration. This offence was committed against a 10-month old victim in the care of the Applicant who was, at the time of this offence, already suffering substantial injuries from the prior s.35(2) offence.

66. [136]

    This was a substantial offence of assault occasioning actual bodily harm in these circumstances. His Honour’s finding that this offence fell “within the broad mid-range of objective seriousness” was open in the circumstances of this case.

67. [137]

    I would reject the first ground of appeal.

Ground 2 - The Sentence is Manifestly Excessive

1. [138]

   The Applicant submitted that, allowing for the 25% discount for the plea of guilty, the indicative sentence for the s.35(2) offence was one of six years, being 60% of the maximum penalty. The notional discounted non-parole period was about three years and six months, being 88% of the standard non-parole period of four years.

2. [139]

   It was submitted that given the Applicant’s very powerful subjective case, the sentence was outside the appropriate range even by reference to the two legislative guideposts contained in the maximum penalty and the standard non-parole period and that this was so even allowing for the finding that the offence lay within the “broad mid-range of objective seriousness”.

3. [140]

   It was submitted for the Applicant that the Form 1 offence involving the assault upon the ambulance officer was minor and, if dealt with separately, would not have called for a custodial sentence so that no significant increase in sentence for the s.35(2) offence was warranted for that reason.

4. [141]

   Counsel for the Applicant relied upon sentencing statistics for s.35(2) offences in both the Local Court and the District Court. It was submitted that consideration of those statistics supported a conclusion that the sentence in this case was manifestly excessive.

5. [142]

   Counsel for the Applicant noted that there was not a large cohort of appellate decisions involving causing grievous bodily harm to children. Reference was made to the decision of this Court in R v Lolesio [2014] NSWCCA 219 in support of the argument that the sentence here was manifestly excessive.

6. [143]

   Reliance was placed as well upon sentencing statistics for offences of assault occasioning actual bodily harm whether prosecuted in the Local Court or the District Court.

7. [144]

   It was submitted for the Applicant that there was a sentence which involved a significant degree of notional accumulation as a result of the s.59(1) offence, with the aggregate sentence being six months longer and the aggregate non-parole period being four months longer than that relating to the s.35(2) offence. It was submitted that this aspect fortified a conclusion that the aggregate sentence was manifestly excessive.

8. [145]

   The Crown submitted that both offences were objectively very serious having been committed against a vulnerable, defenceless 10-month old infant in the boy’s home by an offender who was in a position of trust with respect to the infant and which resulted in hospitalisation of the infant for 26 days with injuries which carried the risk of life-long injury to the victim.

9. [146]

   In addition, the Crown submitted that it was an aggravating feature that both offences were committed whilst the Applicant was in breach of conditional liberty.

10. [147]

    It was submitted that the Form 1 offence of assault on the ambulance officer was itself serious being committed against a vulnerable student ambulance officer who was involved in the treatment of the victim.

11. [148]

    The Crown submitted that, even where offences against children are committed through lapses of control, deterrence and denunciation are important considerations on sentence: R v Smith [2005] NSWCCA 286 at [54].

12. [149]

    Whilst acknowledging that the role of general deterrence on sentence for an offender with a socially deprived background and an intellectual impairment is reduced, the Crown submitted that general deterrence and denunciation remained purposes of punishment although moderated in favour of other purposes of punishment: Kiernan v R [2016] NSWCCA 12 at [63].

13. [150]

    The Crown submitted that the relationship between self-induced intoxication and a deprived background did not operate substantially in the Applicant’s favour on sentence in this case: Munda v State of Western Australia at 620-621 [56]-[57].

14. [151]

    It was submitted that neither the statistics nor the cases relied upon by the Applicant demonstrated that the indicative sentences or the aggregate sentence were manifestly excessive. The Crown submitted that the s.35(2) offence was of such a level of seriousness that it was appropriately prosecuted in the District Court so that Local Court sentencing statistics for that offence did not assist. Further, it was submitted that sentencing statistics for s.35(2) offences do not assist in a case involving an offence against an infant by a person in a position of trust.

15. [152]

    The Crown submitted that the Applicant’s reliance upon the decision of this Court in R v Lolesio could not operate to assist on this ground of appeal. It was a single decision in a Crown appeal with respect to a different offence so that it could not operate to fortify a conclusion of manifest excess in this case.

16. [153]

    It was submitted that some notional accumulation as between the s.35(2) and s.59(1) offences was appropriate in this case given the additional criminality involved in the latter offence.

17. [154]

    The Crown submitted that the ground asserting manifest excess had not been made good in this case.

18. [155]

    The Applicant contends that the aggregate sentence was manifestly excessive. In Newman v R [2018] NSWCCA 208, the Court observed at [47]:

19. [156]

    I do not consider that the Applicant is assisted by sentencing statistics for s.35(2) offences either in the Local Court or in the District Court. As this Court has recognised frequently, bare sentencing statistics are of limited use in support of a ground of manifest excess. The s.35(2) offence in this case was of such a level of seriousness that it was always bound to be prosecuted on indictment in the District Court. Local Court sentencing statistics were not pertinent. District Court sentencing statistics for s.35(2) offences provide no real assistance where the case in hand involves an offence committed by a person in the position of trust against a 10-month old baby where very serious injuries were caused to the child even allowing for the satisfactory recovery which has since occurred.

20. [157]

    Sentencing statistics do not assist the Applicant with respect to the s.59(1) offence either. This was an offence committed against an infant who was already suffering from severe injuries and was assaulted by the Applicant in two different ways with one form of assault being the use of force out of anger and frustration directed to the baby.

21. [158]

    I do not think that the Applicant’s argument is assisted by reference to R v Lolesio. That was a Crown appeal with respect to a different offence and does not operate to suggest any range or even a useful guidepost for the purpose of determining the present ground of appeal.

22. [159]

    The Applicant’s s.35(2) offence involved significant recklessness albeit extending over a short period of time. If the period involved had been longer, than the consequences may well have been far more dire for the Applicant. As it happens, the baby suffered severe burns arising from the Applicant’s offence.

23. [160]

    The Applicant had a history of offences of violence all of which had been dealt with by non-custodial penalties, probably in recognition of his deprived background and his intellectual impairment.

24. [161]

    The Applicant was subject to conditional liberty at the time of these offences.

25. [162]

    The sentencing Judge had proper regard to the Applicant’s profoundly disadvantaged upbringing and his intellectual impairment. Appropriate regard was had as well to the progress which the Applicant had made in his life before the events surrounding the commission of the present offences.

26. [163]

    The Form 1 offence of assault upon the student ambulance officer was taken into account on sentence for the s.35(2) offence. It involved an assault upon a young health worker and arose because of the victim’s occupation so as to constitute an aggravating factor under s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999.

27. [164]

    The question for the Court is not whether some other sentence might be imposed if this Court was itself moving to sentence the Applicant for these offences. The task for the Applicant is to satisfy the demanding test of manifest excess which requires the Court to conclude that the aggregate sentence was unreasonable or plainly unjust.

28. [165]

    I accept that the aggregate sentence was a substantial one. However, the reasons of the sentencing Judge serve to explain the sentencing outcome and this conclusion was open in all the circumstances of the case.

29. [166]

    The Applicant has not demonstrated that either the indicative sentences or the aggregate sentence were manifestly excessive. I would reject the second ground of appeal.

Conclusion

1. [167]

   The Applicant has not made good either ground of appeal.

2. [168]

   I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.