R v Kendall Matthew James [1993] ACTSC 58; (1993) 113 FLR 247 (23 June 1993)

SUPREME COURT OF THE ACT

THE QUEEN v. KENDALL MATTHEW JAMES
No. SCC103 of 1991
Number of pages - 7
Criminal law - Sentencing practice - Sentencing - Sentence
[1993] ACTSC 58; (1993) 113 FLR 247

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ

CATCHWORDS

Criminal law - child abuse - reckless infliction of grievous bodily harm to newborn - multiple serious injuries inflicted - repeated abuse over six week period.

Sentencing practice - factual basis for sentence - whether accepted facts of surrounding circumstances used to evaluate seriousness of crime of which convicted - representative count of number of offences - whether admission of those other offences required before consideration in sentencing.

Sentencing - plea of guilty - whether reduces maximum sentence - whether subjective factors to be taken into account.

Sentence - maximum sentence - reserved for worst type of offence charged, not worst imaginable case.

R v. Omar and Others [1991] FCA 421; (1991) 55 A Crim R 373

Thomas, Current Sentencing Practice

R v. Holder (1983) 3 NSWLR 245

HEARING

CANBERRA, 17 May 1993, 16 and 17 June 1993
23:6:1993

Counsel for the Prosecution: Mr K. Crispin, QC

with Mr K. Archer

Solicitors for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Accused: Mr P Hastings, QC

Solicitors for the Accused: Gilpin and Associates

ORDER

THE COURT ORDERS THAT:
1. Kendall Matthew James be sentenced to eight years imprisonment. A non-parole period of five years to be fixed

2. The offender be regarded as a prisoner at risk and the warrant of commitment to prison be so marked.

DECISION

MILES CJ Kendall Matthew James pleaded guilty to a single count that he between the 16th day of August 1991 and the 31st day of August 1991 caused grievous bodily harm to Sussan James. While the offender has only been charged with one count of inflicting grievous bodily harm, it is appropriate to refer to the several occasions when the injuries are said to have occurred.

2. In brief, the evidence to support the charge showed that over the period in question the offender caused a number of serious injuries to the victim. She was his daughter, born on 1 July 1991 and some eight and a half weeks old at the end of the period charged.

3. In summary, the injuries may be grouped as follows:

1. Injury on 16 July 1991: fracture of left humerus.
2. Multiple injuries on or about 2 August 1991:
fractures of the left
ribs, fracture of the right femur, fracture of the right tibia and
fibula, vertical fracture of the left side of the skull.
3. Injuries on or about 16 August 1991: fractures to
the right ribs.
4. Injuries on or about 23 August 1991: fracture of the left femur,
horizontal fracture of the skull and bowel perforation.

4. Although some of the evidence tendered for the purpose of sentence tends to suggest that the bowel injury occurred on 30 August 1991 or in the 24 hours or so preceding, I am told by counsel that it is accepted by both parties that the view of the operating surgeon, Dr Malecky, is that it occurred at any time up to a week before that date. It is further accepted by both parties that it occurred in the same incident as that which caused the fracture to the left femur and the vertical skull fracture. Dr Stubbs, the treating orthopaedic surgeon, put the latter injuries at about 23 August.

5. Although the indictment charged one offence only, the evidence clearly pointed to several injuries of different dates and therefore to multiple offences. The prosecution was necessarily put to election and chose to rely on the injuries inflicted on 23 August 1991.

6. I interpolate that the bowel perforation and consequent peritonitis were life-threatening and that at operation the perforation was repaired. Post-operatively the child required intravenous pain killers and antibiotics and a transfusion. She was in intensive care for five days.

7. It is necessary to make some precise findings about the conduct of the offender leading to the offence charged. He commenced a relationship with the child's mother in April 1990 and in August of that year it became a de facto relationship. At first, they were both in employment and lived in a flat at Florey. When the young woman became pregnant, they applied for government housing and were put in a bed-sitter at Barton. The offender lost his job because of prevailing economic conditions. The young woman had to cease work because of her pregnancy. After the birth of the child on 1 July 1991, they were placed under great stress. It was the inability of the offender to cope with the situation which appears to have given rise to the otherwise inexplicable inhumane sustained attacks on the baby over a period of some six weeks from the time the child was only a few weeks old.

8. The offender did not give evidence. He claimed to police and to others not to be able to recollect the incidents which caused the injuries. The child's mother, who gave evidence, said that she did not see him appear to be doing anything to deliberately inflict any injury on the baby, although she was aware that he had flung the child on the bed and was attempting to force-feed her.

9. Putting the pieces of evidence together as best I can, the following picture emerges. It is clearly established that the child suffered a fractured left humerus on 16 July 1991, as she was taken to hospital that day and the injury precisely diagnosed a couple of days later. The parents gave a history of the child falling from the father's lap. Hospital staff accepted that history, which may have been correct. However, the parents never returned to the fracture clinic as they were advised.

10. On 23 July 1991 the offender's parents came from Tasmania to see their new granddaughter. The offender's mother, who gave evidence, noticed small bruises and scratches on the baby, but that gave her no cause for alarm. She said that the offender was attentive and concerned about the baby and showed no signs of alcohol abuse. She and her husband left Canberra on 1 August.

11. On 7 August 1991, the offender's 25 year old sister, a registered nurse, came to Canberra for four days and spent most of the day time hours at the offender's flat. On the first day she was told by the offender that the baby had trouble drawing up one of her legs but that a doctor had said that she was all right. On the last day of her visit, 11 August, the sister noticed a bruise on the right side of the baby's face and that the right lower leg and ankle were badly swollen. She was told that the baby had scratched herself and that the offender had accidentally trodden on her. Some time in the middle of August, a friend of the offender noticed that he and the child's mother appeared to be very stressed and that they had trouble controlling the baby's crying. On 25 August she noticed bruising on the child's face, which appeared to have cleared up by 29 August.

12. However, when the child was presented to the Woden Valley Hospital on 30 August, the extensive injuries already mentioned were recorded. The offender explained the bruising to the abdomen by saying that it might have happened several nights previously when he hit the child to restore her breathing after she had choked. As to bruising behind the ears, he claimed that might have happened when the child fell from her baby capsule during a picnic. He was unable to explain the injuries to the legs, although he had said on an earlier occasion, and later told police, that he had once accidentally trodden on the child whilst getting out of the car.

13. I accept that the approximate dates of the various fractures were as estimated by Dr Stubbs and as already set out. The likely cause of the fractures to the legs was the suspension of the child by the legs and being violently shaken whilst so held. The multiple injuries to the ribs are likely to have been caused by squeezing. The skull fractures were probably caused when the child was thrown on to the bed and struck her head against some hard object, or when she struck her head on the table whilst being force-fed. The injury to the child's mouth was probably sustained from being squeezed, also during force-feeding. Bruising to the retina of the right eye was the likely result of severe shaking.

14. At the time of admission into hospital the child was under-nourished. This does not appear to be the result of any deliberate deprivation of nourishment on the part of either parent, but is more likely to be the consequence of the child's reaction to the physical injuries inflicted upon her.

15. The medical evidence is that the child has recovered from most of the physical injuries. The skull fractures resulted, fortunately, in no brain damage. The fracture of the right tibia did not heal in a straight line immediately and had to be adjusted by operation when the child was about one year old. There is a possibility that as a result, one leg will be shorter that the other. One tooth, the upper right central incisor, has not emerged, and never will as result of the injury to the mouth. Whilst the child in foster care appears to be well and happy, the medical evidence is that she showed clear signs of extreme infantile stress whilst in hospital, and after intensive care, remained in a special care nursery until being discharged to foster care on 19 September 1991. It is likely that the psychological effect of the traumatic events of the first two months of her life will have some permanent effect, although it is impossible to be precise about detail. She continues to display signs of stress when removed from her primary care giver, who is now her foster mother. The child will have to try to come to terms with whatever relationship is established with her mother and, indeed, her father. She will have the continuing reminder of a missing tooth which may not be replaced artificially until she stops growing.

16. It has been appropriate to record the facts of the offence and the surrounding circumstances with brevity and objectivity. Photographs taken whilst the child was in intensive care evoke a less dispassionate response. There is no doubt that the child suffered what is termed in the words of the Crimes Act "grievous bodily harm".

17. It is important to bear in mind that the offender has not been charged with the more serious offence of intentionally inflicting grievous bodily harm and that it is recklessness and not intention that is at the heart of the offence for which he has been convicted. It carries a maximum sentence of 10 years imprisonment. That offence has to be seen in the light of the surrounding circumstances, although those circumstances themselves disclose offences with which the offender has not been charged. It is now established by the Full Court of the Federal Court of Australia that accepted facts not constituting part of the crime for which an accused is convicted can properly be used to evaluate the seriousness of the crime for which the person is convicted, and that such facts should not be regarded as potentially countervailing subjective considerations which might tend towards leniency on the basis, for instance, that the crime for which the person is convicted was an isolated lapse: R v. Omar and Others [1991] FCA 421; (1991) 55 A Crim R 373 (cf H (1981) 3 A Crim R 53, R v. McKenzie (1984) 6 Cr App R (S) 99, R v. Burfoot (1990) 12 Cr App R (S) 252). According to Thomas, Current Sentencing Practice, para. L2-1D, where an offender pleads guilty in respect of one or more related offences, the sentencer must not sentence on the basis that the offender is guilty of further offences of a similar nature, of which the offences charged are representative counts, unless the offender admits that this is so. That admission is made through counsel for the offender in the present case.

18. Thus seen in the light of the prior conduct, the external facts of the offence for which this offender has been convicted can only be regarded as extremely serious. However, the essential criminality still needs to be assessed in the light of subjective factors that accompanied the commission of the offence.

19. The offender was born in Tasmania on 17 June 1970. His subsequent history has been the subject of a considerable amount of evidence, including an antecedents report from the Australian Federal Police, a very comprehensive and helpful pre-sentence report from a corrections officer, evidence from a psychiatrist, who has been treating the offender whilst on bail, and evidence from the offender's mother.

20. The offender has no prior record for any offence of violence. He has an extensive record of traffic offences and has two convictions for theft before the middle of 1991. Since the offence, and apparently whilst on bail, he has been convicted of assaulting police and resisting police, which, whilst of no great seriousness, confirm an inability to settle down. He had a good employment record after coming to Canberra in 1987 to join an older brother who was working here. The relationship with the brother seems to have come to an end. Dr Veness, the psychiatrist, is of the view that the offender is an alcoholic and that the offences were committed whilst he was heavily affected by liquor. Dr Veness ascribes the failure to remember committing the offences as due to consumption of massive amounts of liquor. The offender's statements about his lack of recollection are not entirely convincing. The offender's wife's evidence on this aspect was somewhat ambivalent. His mother claimed that he showed no signs of over-consumption of alcohol during the time she was in Canberra after the birth of the baby. I think the truth is that the offender can, if necessary, refrain from heavy consumption of liquor for short periods, but a tendency towards alcoholism, combined with the stress of events in July and August in 1991, particularly after his parents had left Canberra, contributed towards the loss of self-control which allowed him to perpetrate such gross abuse upon his small daughter. The tendency towards alcoholism itself is, I think, likely to be indicative of deeper personal problems, the exact nature of which is not understood. Dr Veness is of the view that the offender has had a severe drinking problem since the age of 17 and that it was alcohol that removed all restraints upon his anger when he was frustrated by the baby's refusal to feed for him. The baby thus became, according to Dr Veness, "the innocent victim of his previously suppressed rage, the sources of which go back a long way".

21. Whilst, in my view, this explanation is likely to be true, it must be remembered that the assaults upon the child occurred repeatedly over a period of some four weeks, leaving aside the incident of 16 July 1991. There are indications that the offender knew what he was doing, or at least that what he was doing was having an effect on the child. Regard may be had to his excuses and explanations for the bruises and other symptoms given to his sister and his friend, the remark, apparently jokingly, to the mother on one occasion when he had thrown the child on the bed, that "I think I've killed the baby", and to the deliberate decision to take the child eventually to Woden Valley Hospital and not to return to Royal Canberra Hospital where she had first come under attention.

22. Yet, on the other had, there is acceptable evidence that he was pleased at the birth of the child and displayed parental affection and responsibility from time to time and that in that regard, to some observers, he took over at least some of the tasks that the mother was unable to cope with. There is also the evidence from Dr Veness that he is starting to deal seriously with his problems of anger and mistrust and shows contrition for the harm he has caused the child, the distress he has caused the mother and the trouble he has caused his own family. Dr Veness says that he is making progress with therapy, for which he needs another two years and which would be set at nought by imprisonment.

23. I have paid particular attention to the pre-sentence report, whilst not overlooking the other evidence. It is not necessary to quote from the pre-sentence report at length. It is sufficient to say that, in my view, it presents a consistent and comprehensive account of the very subjective factors that contributed to the offence and which should be taken into account, including the family background of both the offender and the mother of the child, the history of drug and alcohol abuse, the problem of accommodation, inexperience with babies and the problems of parenthood, financial hardship, lack of transport, difficulties in the relationship with the mother and her family and so on. The pre-sentence report summarises some of these aspects as follows:

"A combination of worries about his baby and depressed
partner, with no
work, money problems and poor accommodation, broken
sleep and feelings
of alcohol deprivation, and unable to go out and readily seek
consolation by socialising with friends, clearly affected the
offender's ability to handle any crisis. His loner style of
management, part of his belief that it was his duty to
cope with the
situation, meant that he was unable to ask for help
and prevented him
from recognizing that he should."

24. I have taken into account the plea of guilty and the independent evidence of contrition. A plea of guilty, however, will not reduce a maximum sentence where such a sentence is otherwise called for: R v. Holder (1983) 3 NSWLR 245.

25. The maximum sentence is not to be reserved for the worst imaginable case but for the worst type of the offence in question. In view of the repeated abuse over the period of the second month of a baby's life, I can come to no other conclusion than that the offence committed by this offender must belong to the worst type of reckless infliction of grievous bodily harm. Imprisonment can be the only appropriate disposition to mark the seriousness with which the community must surely regard such behaviour. Child abuse is a matter of increasing concern in the community, and possibly of increasing incidence. The argument that imprisonment will not deter other people in similar situations of domestic desperation and alcohol induced rage does not outweigh that essential requirement in this case. Rehabilitation of the offender likewise, whilst not overlooked and not displaced, cannot be a substantial factor. Suspending the sentence is out of the question. The maximum sentence has to be given proper consideration. However, in view of the age of the offender, the contrition and the hope that the offender may still make something of his life if he can realise that he has some prospects of doing so, I think that a sentence less that the maximum is justified and that a non-parole period should be fixed.

26. Kendall Matthew James you are sentenced to 8 years imprisonment. I fix a non-parole period of 5 years. Both periods are to date from 10 June 1993. The offender is to be regarded as a prisoner at risk and the warrant of commitment to prison is to be so marked.