R v Jb [2005] ACTSC 86 (26 August 2005)

Last Updated: 14 September 2005

R v JB [2005] ACTSC 86 (26 August 2005)

EX TEMPORE JUDGMENT

No SCC 76 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 26 August 2005

IN THE SUPREME COURT OF THE )

) No SCC 76 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: JB

Defendant

ORDER

Judge: Crispin J

Date: 26 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. the charge be dismissed.

1. I order that there be no publication of the name [JB] or [child's name], or indeed any other names which may tend to lead other members of the public to identify those two people. Consistent with that ruling, I will refer to [JB] simply as the defendant in order to ensure that the matter may be reported in a duly anonymised manner. The defendant has pleaded guilty to one charge that on 25 September 2003 at Canberra in this Territory she did ill treat a child in her care.

2. The facts, which have been admitted, may be briefly stated. The defendant, who was then only 16 years of age, was caring for her baby daughter who was then only four months old, and was alone with her when she began to cry. Despite any attempts to comfort the baby, she would not stop crying and the defendant eventually became angry and frustrated. She finally picked the child up, held her around the waist and shook her for some short period of time. She then put the child back down in her rocker and went outside for a cigarette. When she came back inside the child was asleep.

3. She subsequently told another person what she had done and was interviewed by the police and made full admissions.

4. It must be said that the act of shaking a crying child not only involves the commission of a serious criminal offence, but also flirts with tragedy. Shaken babies may suffer fractures, brain damage, blindness or even death. Fortunately, none of these things have occurred in the present case as a consequence of any action of the defendant. Nonetheless, acts of this kind are potentially very serious and, in cases where serious damage has occurred as a consequence, very heavy sentences of imprisonment have often been imposed.

5. On the other hand, the mother in this case was herself only 16 years old at the time of the offence. Furthermore, subsequent psychological examination has revealed that her cognitive ability is only in the fourth percentile, and there is no reason to suppose that at the time she committed this act she had any real understanding of the potential danger to the child.

6. I should also observe that the defendant herself had the most horrendous childhood. She was subject to repeated violence by her parents and prolonged sexual abuse by a partner of her grandmother who, as a consequence of his behaviour, was subsequently convicted and sentenced to a term of imprisonment. The psychologist who examined the defendant suggested that she may still suffer from post-traumatic stress disorder as a result of this sexual abuse.

7. There is no reason to suppose that the defendant does not wholeheartedly love her child. The act that occurred on this occasion was clearly the product of a short term loss of control by a person who, herself, was not only immature but had a limited ability to understand the implications of what she was doing and was suffering from the legacy of a violent childhood.

8. Following the incident she apparently spontaneously told someone else what she had done. As a result, she has since obtained psychological assistance and has completed a stress and anger management program as well as other courses, including a living skills program with a view to ensuring that she is able to put her life back on track.

9. She has made significant progress as a result of those courses and has been able to obtain independent accommodation as well as hold down a job. The child is now in the effective custody of the Chief Executive of the Department of Disability, Housing & Community Services and with his consent, is in the care of the paternal grandmother. The defendant still has supervised access to her daughter for two hours twice each week.

10. In the particular circumstances of this case, it seems to me to be appropriate to accede to her counsel's submission that it would be appropriate to find the offence proven but without proceeding to a conviction dismiss the charge pursuant to section 402 of the Crimes Act 1900 (ACT).

11. As stated in section 402(1)(b), such a course may be taken when:

"the court is satisfied that the charge is proved but is of the opinion, having regard to

(1) the character, antecedents, age, health or mental condition of the person; or

(2) the extent (if any) to which the offence is of a trivial nature; or

(3) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation."

12. In the present case I trust it will be clear from what I have said that I do not regard this offence as being of a trivial nature. On the contrary, it was potentially a very serious offence. However, the criteria set out in section 402 (1)(b) are alternative criteria so it is unnecessary to satisfy each one individually. In the circumstances of this case it seems to me that it is inexpedient to inflict any punishment having regard, in particular, to the antecedents, age and mental condition of the defendant, and also to the extent to which the offence was committed under extenuating circumstances. The learned Crown prosecutor has quite properly indicated that in the circumstances he does not oppose this course. I am satisfied that that is entirely appropriate.

13. Accordingly, I find the offence proven but pursuant to section 402 of the Crimes Act 1900 and without proceeding to a conviction I order that the charge be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 7 September 2005

Counsel for the Plaintiff Mr J Lundy

Solicitor for the Plaintiff ACT Director of Public Prosecutions

Counsel for the Defendant Ms A Tonkin

Solicitor for the Defendant Darryl Perkins

Date of hearing 26 August 2005

Date of judgment 26 August 2005