Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: George (a pseudonym) v R [2021] NSWCCA 321 Hearing dates: 10 December 2021 Decision date: 22 December 2021 Before: Basten JA at [1]; Davies J at [2]; Button J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – appeal against sentence – sentence on guilty plea – failing to report commission of child abuse offence – Form 1 offence of failing to provide a child with necessities of life – six-week old child of applicant mistreated by mother – severe brain injury resulting in permanent deficits – denial on oath of agreed facts – subsequent withdrawal of denial – whether applicant traversed plea – reduced utilitarian discount – discount for assistance – adequacy of reasons Legislation Cited: Crimes Act 1900 (NSW), ss 43A, 316A Crimes (Sentencing Procedure) Act 1999, ss 23, 25F Cases Cited: Dean v R [2019] NSWCCA 27 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones (a pseudonym) v R [2021] NSWCCA 106 R v Hamilton v DPP [2020] NSWSC 1745 R v Radic (2001) 122 A Crim R 70; [2001] NSWCCA 174 R v VHP (Unreported, NSWCCA, 7 July 1997) Category: Principal judgment Parties: Albert George (Applicant) Regina (Respondent) Representation: Counsel: R Rodger (Applicant) B Hatfield (Crown) Solicitors: Legal Aid Director of Public Prosecutions File Number(s): 2019/242346 Publication restriction: Pseudonyms adopted to protect identity of child victim of offending Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 February 2021 Before: Colefax SC DCJ File Number(s): 2019/242346 Judgment 1. BASTEN JA: I agree with Button J. 2. DAVIES J: I agree with Button J. 3. BUTTON J: Albert George (the first of a number of pseudonyms adopted to protect the anonymity of a child; the applicant) was sentenced by Judge Colefax SC in the District Court at Campbelltown on 16 February 2021. He had pleaded guilty to two offences in the Local Court, but one of them had been placed on a Form 1, and taken into account on sentence for the other. 4. The substantive offence was contrary to s 316A(1) of the Crimes Act 1900 (NSW), and carried a maximum penalty of imprisonment for 5 years. It was expressed as follows in a charge certificate: between 12 June 2019 and 1 July 2019, at Goulburn in the State of New South Wales, [the offender] knew that a child abuse offence had been committed, and failed to bring that information to the attention of the NSW Police Force. 5. The Form 1 offence was contrary to s 43A(2) of the Crimes Act and also carried a maximum penalty of imprisonment for 5 years. It was expressed as follows on the Form 1: the offender failed to provide [Richard] with the necessities of life, causing danger of serious injury to [Richard]. The dates of that offence were expressed in a charge certificate to be "between 19 June 2019 and 23 June 2019". 6. Ultimately, the learned sentencing judge rejected a defence submission that an Intensive Correction Order (ICO) was appropriate. Having applied various discounts to the starting point of the head sentence for the principal offence (the details of which I shall discuss later), his Honour imposed a head sentence of imprisonment for 2 years 7 months, with a non-parole period of 1 year 8 months, each to date from 8 February 2021. Background 1. The matter has a chequered forensic history, but the facts of the offending can be summarised shortly. 2. The applicant and Ms Jessica Ryan were young parents living together in a regional centre. Their first baby, Richard, was about six weeks old. Ms Ryan brutalised him in a number of ways that cumulatively severely injured his brain. Without urgent medical intervention, Richard would have died; indeed, he almost died in any event on the operating table. He has suffered permanent cognitive and physical detriments as a result, though there may be some improvement in the future. 3. The applicant was aware of what had been done to his son. In particular, he was present and saw an occasion when Ms Ryan was shaking the baby, holding him upside down, and dragging his head along the top of his bassinet. 4. For a period of quite some days, the applicant kept hidden his knowledge of the fact that Ms Ryan had recklessly caused grievous bodily harm to their son (the nub of the substantive offence). During those days, although he was well aware of the mechanism whereby his son had been grievously injured, he prevaricated in revealing the truth, and thereby getting him appropriate medical attention (the nub of the Form 1 offence). 5. The applicant had engaged in a recorded interview with police on 1 July 2019. His original position was that, after the baby had been found, by an MRI, to be badly injured, Ms Ryan had said to him "I shook [Richard]" (Q462). Later, he said that, apart from the shaking incident about which he had been told, he had also seen his partner throw the baby "face-first onto the bed, a few times" (Q564). He later asserted that he had only seen Ms Ryan throw the baby onto the bed on one occasion (Q622). He also spoke of having seen his partner having "tapped him on the bum" (Q659 and following), with the result that the baby did "a jumping thing", and the applicant thought "he hit his head on the top of the bassinet". 6. The applicant denied that there were any other incidents, or anything else that he wished to tell the police about, with regard to interactions between his partner and his son (Q740). He asserted that he could think of no other reason as to why his son might have suffered a traumatic brain injury (Q761). 7. Later, having been confronted with plainly inculpatory conversation recorded by a listening device, he told police that he had seen his partner holding the baby upside down, and she had "dragged his head on the top of the bassinet" (Q799). He claimed to have forgotten about that incident, and apologised for his lapse in memory. Later, when describing that incident in more detail in the interview, he characterised it as "brutal", "forceful", "intentional", "aggressive", and "traumatic". 8. Towards the end of the interview, he confirmed that his position was that he had not been present when his partner shook the baby, but he had been when she "knocked him around the bassinet" (Q924 and following). 9. The matter first came before the sentencing judge on 28 September 2020 at Goulburn. On that occasion, a "Crown bundle" was tendered, which included a statement of agreed facts dated the day of the hearing. The statement bore the signature of the applicant. Included in that document were extracts from the recorded conversation, and the recorded interview to which I have referred. 10. The applicant was called to give evidence in the defence case on that occasion. In cross-examination, he accepted that he had seen his partner smack their newborn baby on the backside. But he denied that there was a time when he had seen his partner shake the baby. Nor had he seen her pick the baby up by the feet. He reverted to the position that he had not been present on an occasion when his partner had grabbed their son, thrown him from side to side, up-and-down, picked him up, and walked around with him hanging upside down. Instead, his position was that he had been told about that by his partner, but he had neither been present when it occurred nor seen it himself. A little later, he confirmed on oath that his position was that he had merely been told about it, and had not seen it with his own eyes. 11. When shown in cross-examination the agreed facts that he had signed that day, he disputed a number of aspects of the document. He also made it clear that, to the extent that in the recorded interview he had demonstrated to police with a doll what he was then claiming he had seen his partner do, that was actually based upon "what she told me". 12. At the conclusion of his cross-examination, he seemed to confirm that he had pleaded guilty to concealing a serious offence; that that serious offence was his partner injuring the baby; that "what you witnessed her do" was the serious offence; that he had not told the police about it until the interview; and that was what he had pleaded guilty to. Thereafter the following exchange occurred: "HIS HONOUR Q. And now you say you didn't see it? A. I didn't see it, no. I pled guilty for not telling the police when she told me – confessed." 1. Submissions were received from both parties as to the correct approach to this unexpected evidence. The sentencing judge remarked that "in a sense this has turned out to be a contested facts hearing". The Crown was permitted to reopen its case, submissions were made, and eventually the matter was stood over for imposition of sentence on 30 October 2020. 2. On that occasion, however, each party was granted leave to reopen its case on sentence. The applicant was recalled to the witness box. In cross-examination, he confirmed that he had seen his partner shake the baby from side to side; hold him upside down by his feet; and toss him onto the bed a distance of something less than two metres. He later gave evidence that his failure to tell the truth had been "eating me alive". 3. The matter was stood over for further proceedings on sentence on 4 December 2020, on which date further submissions were made by both counsel. 4. At no stage prior to the imposition of sentence did defence counsel submit that the plea of guilty to either offence had been traversed, with the result that his Honour should not proceed to sentence. 5. In the sentencing judgment delivered some weeks later, his Honour made the following findings. 6. The reckless infliction of grievous bodily harm committed by Ms Ryan that founded the substantive offence included many occasions of violence against a five-week-old baby. 7. As for the offence on the Form 1, "[b]y having regard to the nature of that matter, it will result in a significant and meaningful increase in the sentence for the principal offence". 8. The sentencing judge discussed in significant detail the acts of violence committed against the victim; the awareness of the offender of them; his failure to bring them to the attention of the police, treating doctors and nurses, or anyone else over an extended period; the medical interventions required to save the life of the baby; and his long-term deficits. Only the following findings require emphasis here. 9. In accordance with the final position of the applicant on oath, at some point during 19 June 2019, Ms Ryan violently shook the baby; that was the occasion during which the victim was held upside down by his ankles. 10. There was an extended period of days when the victim was patently injured, in pain, and in grave danger, when the applicant neglected to inform the authorities or medical personnel about what had really happened to his son. 11. Richard nearly died on the operating table. 12. Symptoms of his evolving brain injury would have been present from the evening of 19 June 2019. 13. Subsequently, the sentencing judge assessed the principal offence as "above the mid-range". 14. The sentencing judge recounted some favourable subjective features: the absence of prior convictions; the conclusion of the romantic relationship with Ms Ryan; the relative youth of the applicant, a man in his mid-20s; his completion of the Higher School Certificate; his subsequent employment; his freedom from addictions of any kind; and his loving and supportive family background. 15. The sentencing judge also accepted evidence from the father of the applicant that the applicant's romantic partner had had a "domineering and dominating influence over" him. 16. In contrast, the sentencing judge approached the evidence on oath of the applicant with "considerable caution". 17. His Honour characterised the failure of the applicant to protect his son as involving "a complete abdication and abandonment of moral responsibility for him". 18. The discount that would ordinarily have been given of 25% for the utilitarian value of the early plea of guilty was reduced to 15%, "considering the manner in which the sentence hearing was conducted and unnecessarily protracted". 19. His Honour allowed a further discount of 10% for "past assistance to authorities", based upon what the applicant had told the authorities about the conduct of his former partner. 20. His Honour also referred to an undertaking given by the applicant to assist in the prosecution of Ms Ryan; her trial had been due to commence shortly. Shortly before the delivery of the sentencing judgment, however, she had pleaded guilty, although a dispute about facts was expected. As for future assistance in those circumstances, his Honour noted "your admissions as to giving untruthful evidence and otherwise providing unreliable versions of events". Even so, his Honour allowed a further 10% discount for the value of any future assistance. 21. It can be seen therefore that a 35% total discount was applied to the starting point of the head sentence for the substantive offence. 22. His Honour spoke of the abhorrence of the abuse of children, especially when inflicted by "their own parents and in their own homes". The sentencing judge spoke of general deterrence as being "fully engaged" and "the principal sentencing consideration in this case", although his Honour went on to say that "specific deterrence, whilst of reduced significance in your case, still remains an important sentencing consideration." 23. Before imposing sentence, the sentencing judge expressed his satisfaction on the balance of probabilities that the applicant was genuinely remorseful. 24. Again, on balance, his Honour found the prospect of rehabilitation of the applicant to be "reasonable". 25. Finally, his Honour remarked that "no sentence other than a term of imprisonment is appropriate for your offending conduct". Grounds of appeal 1. The following proposed grounds were pressed at the hearing: "1. The sentencing judge erred in his approach to the plea of guilty in the Local Court in circumstances where: (i) the applicant traversed his plea in evidence in the District Court; and (ii) the Sentencing Judge improperly applied s 25F of the Crimes (Sentencing Procedure) Act 1999. 2. The Sentencing Judge erred in his approach to the discount for assistance to authorities. 3. The sentencing judge erred in providing no reasons for the following: (i) the finding that the offence was above the mid-range; (ii) the finding that no other sentence than full-time imprisonment was appropriate; (iii) the finding that specific deterrence remained an important sentencing consideration; (iv) the finding that there were only reasonable prospects of rehabilitation; (v) the finding that the Form 1 matter would result in a significant and meaningful increase in the sentence for the principal offence." 1 Error in approach to plea of guilty in the Local Court Submissions of applicant 1. In written submissions, the applicant drew attention to the way the Court Attendance Notice for the substantive offence had "particularised the offending" as "witnessing" the assault. The actual observance by the applicant of that incident was said to be "an essential fact". It was said that, once the applicant denied on oath on 28 September 2020 that he had seen the incident of the baby being held upside down by his ankles and otherwise brutalised, it was incumbent upon the sentencing judge to regard the plea of guilty as having been traversed, and take appropriate procedural steps as a consequence. 2. It was said to have been a legal error to characterise the difference between the parties thereafter as a dispute about facts on sentence. 3. Expanding on what should have been done, it was submitted that, there having been a denial on oath of an offence that had been the subject of a committal for sentence, it was incumbent upon the sentencing judge either to have remitted the matter to the Local Court, or to have rejected the plea of guilty and set the matter down for trial in the District Court. Reliance was placed upon the decision of this Court in R v Radic (2001) 122 A Crim R 70; [2001] NSWCCA 174, in support of the characterisation of the direct observation of the particular incident as an essential fact. 4. Relatedly, it was said that, because it was wrong to regard the applicant as having raised a dispute about facts, there was no basis for relying upon s 25F of the Crimes (Sentencing Procedure) Act 1999 (NSW) to reduce the utilitarian discount. 5. In oral submissions, it was accepted that, for the ground to succeed, one would need to characterise the "witnessing" as an essential fact, as opposed to a mere particular. 6. As for the fact that, in any event, the ultimate position on oath of the applicant was that he had witnessed the assault in question, it was said that, from the moment when the applicant had placed his mode of coming to understand what had happened in dispute, the proceedings "went awry". I understood the submission to be that this Court must not take into account the final acceptance by the applicant that he had indeed seen the incident. 7. Later in the oral submissions, it was accepted that the mode of coming to be aware of what Ms Ryan had done could not be characterised as an element. Counsel submitted, however, that it must be seen to be an essential fact. The basis for that characterisation was not explained. 8. It was accepted that there was no application on foot at the time of the hearing in this Court that the applicant be permitted to withdraw his plea, or mount an appeal against conviction, despite the thesis summarised above. Determination of ground 1 1. In my respectful opinion, this ground can be resolved shortly. 2. As the offence-creating provision, the charge certificate, and the concession of counsel demonstrate, the mechanism whereby the applicant came to appreciate what his partner had done to their baby cannot be characterised as an element of the offence. And it was certainly not a "sub-element" of the kind discussed in Dean v R [2019] NSWCCA 27 and my judgment in Hamilton v DPP [2020] NSWSC 1745. 3. Nor is there any basis upon which it can be said to have become an essential fact in this case. Nothing had occurred that meant that, as a matter of fairness to the applicant, or for any other reason, the Crown was required to be held to its assertion as if it were an element: see generally R v VHP (Unreported, NSWCCA, 7 July 1997). It was merely a particular, albeit an important one, in assessing the gravity of the offending of the applicant and his credibility. 4. His Honour was therefore correct, with respect, to characterise what was occurring as a dispute about facts on sentence. Furthermore, his Honour, without demur by either party, proceeded to try to resolve it, by determining whether an aggravating feature of an admitted offence had been proven beyond reasonable doubt. That was entirely orthodox. 5. Finally, R v Radic is, in my opinion, not relevant to what arose here. As I remarked in Hamilton v DPP, I consider that the approach in that decision of this Court can best be understood as a dissatisfaction with the phenomenon sometimes encountered on sentence whereby the Crown and the offender are "ships passing in the night"; in other words, the parties are not engaging with regard to the one and the same criminal offence. But there is no question of that here: the question was simply the mode whereby the applicant became aware of the offending against his baby. 6. In other words, leaving aside entirely the fact that the applicant subsequently reverted on oath to the position in the agreed facts of having witnessed the assault, I would not uphold this ground. 7. In any event, the simple fact is that, by the conclusion of the proceedings on sentence, the final position of the applicant on oath was that he had indeed witnessed the assault under discussion. In my opinion, that means that the basis of this ground was completely overtaken by events at first instance. 8. As for the second part of the ground, the fact is that the utilitarian value of the early plea in the Local Court was certainly eroded by the way that the applicant conducted his litigation. The approach taken by the sentencing judge with regard to reduction of the utilitarian discount was, with respect, soundly appropriate. 9. I would not uphold this ground. 2 Error in approach to discount for assistance to authorities Submissions of the parties 1. In written submissions, the applicant asserted that the approach of the sentencing judge to s 23 of the Crimes (Sentencing Procedure) Act was "infected with the error" underpinning ground 1. Furthermore, it was said that the sentencing judge had failed to give proper attention to all of the mandatory factors enumerated in s 23(2) of that Act. 2. Reliance was placed upon the decision of this Court in Jones (a pseudonym) v R [2021] NSWCCA 106 for the proposition that all of those matters require reflection in the sentencing judgment. 3. In oral submissions, the need to consider more aspects than merely the usefulness of proffered future assistance was emphasised. 4. The submission of the Crown was that, taken as a whole, the sentencing judgment demonstrated engagement with the relevant factors enumerated in the subsection. 5. It was said that the sentencing judge had certainly considered the significance and usefulness of the proffered assistance; its truthfulness, completeness, and reliability; its nature and extent; its timeliness (bearing in mind the inherent nature of the two offences, and the many changes of position of the applicant); and the fact that the assistance already given and offered pertained not only to the offending of Ms Ryan but also that of the applicant himself. It was also said that s 23(2)(f), (g) and (h) had not been the subject of evidence in the proceedings on sentence, and accordingly did not require discussion in sentencing judgment. Determination of ground 2 1. Resolving this ground succinctly, in my respectful opinion there is a degree of artificiality about it. By the conclusion of the proceedings on sentence, the credibility of the applicant, both on oath and otherwise, had been severely damaged. One might have expected the first question in cross-examination of the applicant by counsel for Ms Ryan to have demanded a concession that the applicant was a person prepared to commit perjury in his own interest. His Honour experienced directly all of the changes of position of the applicant – including his eventual admission to having lied on oath in the face of the sentencing judge. 2. In the sentencing judgment, his Honour discussed the whole history of the matter; made an adverse assessment of the credibility of the applicant and of the value of his proffered assistance; and nevertheless gave a discount for future assistance of 10%. With respect, in all the circumstances, that can be seen to be generous; it would have been open to his Honour to find the proffered assistance to be worthless. 3. In those circumstances, and bearing in mind that the sentencing judgment speaks in detail of the circumstances in which the applicant first implicated Ms Ryan, in my opinion it very satisfactorily engaged with what needed to be considered pursuant to the subsection. 4. I would dismiss this ground. 3 Failure to provide reasons for various matters 1. As indicated above, the matters about which the applicant complained of a lack of reasoning were as follows: "(i) the finding that the offence was above the mid-range; (ii) the finding that no other sentence than full-time imprisonment was appropriate; (iii) the finding that specific deterrence remained an important sentencing consideration; (iv) the finding that there were only reasonable prospects of rehabilitation; (v) the finding that the Form 1 matter would result in a significant and meaningful increase in the sentence for the principal offence." 1. In written submissions, emphasis was placed generally on transparency, and the entitlement of both an offender and the community to understand why and how a particular penalty has been arrived at. 2. As for the finding of objective seriousness, it was said that "no reasons were given as to the basis" for the finding that the principal offence was "above the mid-range". It was said that a mere recitation of the facts of the offending is not a satisfaction of the requirement to assess the objective seriousness of an offence. 3. That was especially the case, it was said, bearing in mind that defence counsel at first instance had submitted that the substantive offence was properly considered as below the mid-range, because the offence pertained over a matter of days only, and much more serious offences against a child, committed over many years, could be the subject of the concealment. To the extent that the Crown submitted to the contrary at first instance, it was said that it was incumbent upon the sentencing judge to resolve that dispute in the sentencing judgment. 4. The point was separately made that the concealed offence could have been homicide, thereby demonstrating the breadth of offending captured by the offence-creating provision. 5. The starting point adopted by his Honour – approaching the maximum penalty – was also prayed in aid of this ground. 6. As for particulars (ii), (iii), and (iv) of this ground, it was submitted that the relevant parts of the sentencing judgment were bald assertions, unadorned by reasoning. It was also said that a Sentencing Assessment Report tendered in evidence was generally positive, as was much other subjective evidence, and that counsel at first instance had put forward a detailed submission in support of the imposition of an ICO. 7. Finally, as for the approach to the offence on the Form 1, it was said no reasons were given for the "significant and meaningful increase in the sentence for the principal offence", above and beyond "having regard to the nature of that matter". The point was made that the two offences were "intrinsically connected to one discrete period of offending" by a person of prior good character. It was conceded that the offences were not "entirely duplicitous", but it was said that they were not "greatly distinguished". Again, it was said that latent error might be "inferred". Determination of ground 3 1. Yet again, I believe that ground 3 in all of its particulars can be resolved succinctly. 2. A noteworthy aspect of the ground is that it does not assert that any of the findings was not reasonably open to the sentencing judge. Nor is latent error a ground of appeal, or even a particular, although it was raised as part of a process of reasoning. 3. In those circumstances, I query whether, in truth, this ground falls within the errors enumerated in House v The King (1936) 55 CLR 499; [1936] HCA 40, and is able to be agitated in an appeal against sentence. 4. Having said that, I proceed to engage with the ground in any event. 5. As for the first particular, in the sentencing judgment, his Honour discussed the details of the offending in significant detail. In my respectful opinion, those details – including as they did the concealment of the brutalisation of one's own baby son, and his suffering a number of permanent impairments – spoke for themselves in terms of the objective gravity of the offence being above the mid-range. In the circumstances of this case, nothing more was required of the sentencing judge in explaining that characterisation. 6. As for the second particular, in my opinion the submission at first instance that an ICO was reasonably open was, with respect, misconceived. The finding that full-time imprisonment was appropriate was inevitable. Again, nothing more than a recitation of what had happened to the baby – and the numerous changes of position of the applicant about it – was required of the sentencing judge. 7. As for the third particular, in my respectful opinion the assessment of the sentencing judge that the offending of the applicant "involved a complete abdication and abandonment of moral responsibility for [his son]" was correct. Bearing in mind that assessment; the unquestionable gravity of the offending; the fact that the applicant was a young man who may father or care for other children; and the fact that it was not inconceivable that he may be placed in other situations in future where he knows of the serious offending of another person, the finding about the role of specific deterrence remaining an important sentence consideration was also correct. Yet again, nothing more needed to be said about it, in the circumstances of this case. 8. As for the fourth particular, regrettably the applicant had shown to himself to be a person who would seek to be dishonest in his own interests. That included admittedly lying on oath. It was hardly surprising that the sentencing judge was not prepared to go beyond finding reasonable prospects of rehabilitation. Yet again, bearing in mind that the offending itself had been discussed in detail, along with the particular procedural history, in the sentencing judgment, nothing further needed to be said. 9. Fifthly and finally, it is true that the substantive offence and the Form 1 offence arose generally from the one course of conduct. But they focused on very different criminality. One was founded on keeping concealed a serious offence having been committed against a child. The other was founded on permitting one's own baby almost to reach the point of death, by one's own inaction and prevarication. Yet again, in my opinion the approach taken to the role of the Form 1 offence was inevitable, and required no reasons above and beyond the recitation of what the applicant had done that preceded it. 10. I would dismiss this ground, in all of its particulars. Proposed orders 1. Ground 1 raised a general question about the characterisation of matters disputed in proceedings on sentence. For that reason, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2021