Regina v Remilton [2001] NSWCCA 546

New South Wales Court of Criminal Appeal

CITATION : Regina v Remilton [2001] NSWCCA 546 FILE NUMBER(S) : CCA 60652/01 HEARING DATE(S) : 6 December 2001 JUDGMENT DATE : 6 December 2001

PARTIES : Crown Joshua Jay Remilton JUDGMENT OF : Stein JA at 24; Hidden J at 1; Howie J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0046 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : LMB Lamprati - Crown D Brezniak - App SOLICITORS : SE O'Connor - Crown Hal Ginges & Co - App CATCHWORDS : CRIMINAL LAW: Sentence - Crown Appeal - offences of violence upon infant - suspended sentence - exceptional subjective case. LEGISLATION CITED : Child Care and Protection Act, 1987 Crimes (Sentencing Procedure Act) CASES CITED: R v Pitcher (CCA, unreported, 19.2.96) DECISION : See paragraphs 18-23

IN THE COURT OF CRIMINAL APPEAL 60652/01

STEIN JA HIDDEN J HOWIE J Thursday, 6 December 2001 REGINA v Joshua Jay REMILTON

JUDGMENT 1 HIDDEN J: This is an appeal by the Crown against what is said to be the inadequacy of sentences passed upon the respondent by Karpin DCJ following his pleading guilty to charges of maliciously inflicting grievous bodily harm, common assault and neglecting to provide adequate care for a child, the last offence being an offence under s 26 of the Child Care and Protection Act 1987. The last offence was in fact on a Form 1 and her Honour took it into account when passing sentence on the charge of maliciously inflicting grievous bodily harm. 2 On that first charge her Honour sentenced the respondent to a suspended sentence of imprisonment for two years with a bond, accompanied by certain conditions to which it will be necessary to return. On the charge of common assault her Honour directed the respondent to enter into a good behaviour bond for three years, again with certain conditions. 3 The facts of this distressing case were adequately summarised by her Honour in her remarks on sentence as follows: "The prisoner and his defacto wife are the parents of two children, a son aged two at the time of these events and the victim, a daughter born on 24 June 2000 and accordingly about eight weeks old at the relevant time. On 27 August the baby had an unsettled night. The mother gave the care of the child to the prisoner in order to get some sleep. She heard the child crying. After about an hour the prisoner brought the baby to her and she says threw the baby to her. She immediately noticed that there was severe bruising on the child's face which had not been there when she placed the child in its bassinette some time earlier. The prisoner denied any knowledge as to how the bruising had occurred. The following day the child's mother took the baby to a doctor complaining that the child was not feeding well and was irritable. The doctor could find nothing wrong. The next day, however, the child's condition was observed by a family support worker who arranged for her to be examined by a doctor, as a consequence of which a notification was made to the Department of Community Services. The support worker returned to the family home with the mother and child where she spoke to the prisoner about the bruising on the child. He admitted hitting the baby in the stomach and he admitted that he had hit the baby very hard on the head. When the prisoner was interviewed by police he confirmed his admissions. He said that his partner was speaking to him in a denigrating fashion which upset him. He was trying to settle the baby who would not stop crying. He felt frustrated and angry. He punched the child in the stomach. He noticed that the punch appeared to wind her which indicates that it was a blow of considerable force. This blow constitutes the charge of common assault. Not surprisingly the child continued to cry and would not settle. This increased the prisoner's sense of anger and frustration. He felt agitated as a consequence of the insulting remarks his defacto wife was making. He said that he then lost it. He struck the child very hard across the head, firstly with a forehand blow and then immediately afterward with a backhand blow. He said that the child screamed when he hit her and he hit her again to shut her up. He was sufficiently concerned about what he had done to check if she was still breathing when he returned her to the crib. He also wondered if he had caused brain damage to her. The blows to the head constitute the first count in the indictment. The prisoner, when challenged by his wife, denied that he knew the causes of the child's bruising. He did not tell her or anyone of the vicious attack on the child because he was concerned that he would be put out of the house if he admitted what he had done. Accordingly, no steps were taken by him to seek help for the child. That constitutes the offence on the Form 1. When the child was medically examined she was found to have facial bruising and skull fractures consistent with the account above given by the prisoner. The skeletal survey disclosed a complex fracture of the right parietal bone. The skeletal survey disclosed a number of other serious injuries to the child consistent with non-accidental injury. Those are not, however, the subject of any charges before the Court, nor can it be determined how those arose and I set those aside. Despite the injuries occasioned by the prisoner's conduct the report from the Children's Hospital indicates that the child now appears to be developing within normal parameters. She is closely supervised and monitored. She lives with her mother and the prisoner has no access to her, although he has brief access to the older child." 4 In many ways the prisoner's subjective case is no less distressing. He was 25 years old at the time of sentence and had no prior convictions. He had the benefit of a satisfactory work history and the evidence disclosed him to have been an honest and hard worker. 5 His family background, however, was characterised by violence. He witnessed the violence of his father, directed usually at his mother. His parents separated and his mother re-married. Unfortunately, things did not improve at all. His step-father also visited violence upon his mother, on some occasions of an extreme nature. The step-father was also verbally and physically abusive of the respondent himself. 6 Her Honour observed that the respondent had consistently witnessed male violence as a normal experience. His relationship with the mother of the child/victim was beset by difficulties from the outset. It seems that the unfortunate woman had problems of her own. She became pregnant very soon after the relationship began. Her Honour had the benefit of reports from the Probation and Parole Service, from a psychiatrist and from the respondent's general practitioner. The probation officer observed that the respondent and his defacto wife were barely able to care for themselves, let alone take on the mutual responsibility of children. 7 Her Honour had regard to the fact that the prisoner had since undertaken counselling and was satisfied that he was genuinely remorseful. She observed him to be visibly distressed during the sentence proceedings and I might say I have observed him to be so in this Court this morning. Her Honour commented upon his obvious vulnerability in the prison system if he were to face a sentence of full-time custody. 8 Her Honour assessed the case in this way: "Clearly his actions were not premeditated. He is a somewhat simple young man who, unfortunately, has had a whole childhood of exposure to domestic violence and has himself been the victim of physical and verbal abuse. He has a problem controlling his temper when tired and frustrated and I accept that he had in fact been working and helping with the care of the children. All the objective signs are that he was endeavouring to meet the demands of fatherhood as best he could. In the event he failed miserably in relation to his baby daughter. None of the difficulties with which he was faced can possibly provide an excuse for the prisoner's conduct. Those facts do, however, place it in the correct context." 9 Her Honour's remarks on sentence, if I may respectfully say so, were crafted very carefully and had regard to all relevant matters. Her Honour expressed in the clearest terms the seriousness of the offences for which the respondent stood for sentence, referring to the decision of this Court in R v Pitcher (CCA, unreported, 19 February 1996.) 10 Shortly put, the Crown's submissions in this Court are that the sentences and, in particular, the two year suspended sentence, are manifestly inadequate, notwithstanding the significant subjective case the respondent was able to make out, and that they failed to reflect the objective seriousness of the offences and the need for deterrence, both particular and more especially general. 11 I can see the force of those submissions but her Honour was confronted with what she rightly described as a tragic and difficult case. This is not the occasion to express in any authoritative way the position which the suspended sentence occupies in the hierarchy of sentencing options now available in this State. It is sufficient to say that such a disposition necessarily arises from the conclusion that a custodial sentence is appropriate on the fact of it but, for reasons emerging from the evidence, ought to be suspended. The suspended sentence does have a denunciatory effect and certainly some deterrent effect, in my view. 12 Notwithstanding the very serious nature of these offences and in particular the offence to which the suspended sentence was attached, I am not persuaded that her Honour fell into error in approaching this unusual case in the way she did. 13 The combination of the suspended sentence and the s 9 bond was such as to mark the seriousness of the crimes whilst promoting the rehabilitation of this respondent. 14 That said there does appear to me to be a technical difficulty with the way her Honour went about passing the suspended sentence. Having announced that the sentence on the first count would be imprisonment for two years her Honour suspended it upon certain conditions being as follows: firstly, that the respondent accept the supervision of the Probation and Parole Service; secondly, that he report to that service within a certain specified time and, thirdly, and this is the condition which troubles me, that he commit no further offences of violence and no criminal offences for which the maximum penalty is imprisonment exceeding 12 months. 15 It appears to me that the combined effect of ss 12 and 95 of the Crimes (Sentencing Procedure) Act is that when a sentence is suspended the offender must be directed to enter into a bond and that bond must contain the conditions required by s 95. One of those essential conditions is that the offender be of good behaviour, which is an all embracing prohibition of committing any offence of any nature and whatever penalty it might carry. 16 In those circumstances it seems to me that it is necessary for that reason alone to allow the appeal for the purpose of altering the conditions attaching to the suspended sentence. 17 Having done so, I am still of the view that the suspended sentence should date from the date upon which her Honour imposed it, being 24 August 2001. 18 Accordingly, the orders I propose are these. The appeal is allowed in respect of the sentence passed on the first count and in lieu of that sentence I would sentence the respondent to imprisonment for two years, to date from 24 August 2001, but I would suspend that sentence and direct him to enter into a bond for the term of the sentence containing the following conditions: 19 firstly, that he appear before this Court if called on to do so at any time during the term of the bond; 20 secondly, that he be of good behaviour; 21 thirdly, that he inform the Registrar of this Court of any change in his residential address; 22 fourthly, that he accept the supervision and guidance of the Probation and Parole Service during the period of the bond. 23 I would otherwise dismiss the appeal. 24 STEIN JA: I agree with the judgment of Hidden J and with the orders which he proposes. It is, as his Honour has said, a distressing case and so much was made very plain by her Honour, the sentencing judge's careful reasons on sentence. 25 The offence is indeed a grave one and her Honour's "...reservations that an apparently non-custodial sentence does not adequately reflect the gravity of the offending..." are understandable and shared by me. However, I can detect no error by her Honour which would lead this Court to uphold the Crown appeal, other than in the manner demonstrated by Hidden J. 26 The sentences which her Honour passed on the respondent were open to her and within the sentencing discretion. The main thrust of the Crown's submission on the appeal is that the sentence passed, a suspended sentence, did not include any real aspect of general deterrence. It seems to me the law says otherwise although I can understand the views of who which contend that it does not. 27 I agree with Hidden J. 28 HOWIE J: This case throws up in sharp relief the difficulties of making sense of the structure of the provisions of the Crimes (Sentencing Procedure) Act in respect of the options available to a sentencing Court. In particular it raises the question of where in the hierarchy of sentencing options a suspended sentence stands. 29 Neither the philosophy that I can perceive behind the Act or the structure of the provisions of the Act assists in the answer to the conundrum highlighted by this case in which her Honour came to the view that other non-custodial options or alternatives to full-time custody would not adequately reflect the objective seriousness of this offence but that a suspended sentence would. 30 In coming to the view that no non-custodial option or alternative full-time custody would reflect the seriousness of the offence committed by the respondent her Honour was, with respect, undoubtedly correct. Her Honour therefore determined that a sentence of imprisonment was the only sentence that could be imposed but suspended it under s 12 of the Act. 31 As has been indicated by the Presiding Judge the Crown's principal complaint is that the sentence imposed had no effective general deterrent component. The Crown, however, conceded that had her Honour imposed what appears to be a less serious sentence under the provisions of the Act, such as community service or periodic detention, an element, however light, of general deterrence would have been reflected in the sentence. 32 The Crown's submission was that this Gordian knot of sentencing options should be broken by the imposition of a full-time custodial sentence in this particular case. 33 In my view the sentence imposed by her Honour was, assuming that a suspended sentence is a sentencing option higher in the hierarchy than either periodic detention or home detention, at the very bottom of the available sentencing discretion for such a serious offence as that which was before her Honour. 34 I doubt that had I been the sentencing judge that I would have imposed such a sentence but that is not the question for this Court. The result in this case in my view should be seen as more a reflection of the principle of double jeopardy in Crown appeals and the exercise of this Court's wide discretion to reject a Crown appeal even though the sentence might otherwise appear to be manifestly inadequate, rather than an endorsement of the sentence imposed by her Honour as an appropriate way to dispose of the offences that were before her. 35 I agree therefore that the appeal should be dismissed other than for the technical reasons given by his Honour Hidden J which require this Court to re-impose the sentence in effect that her Honour imposed on the respondent. 36 STEIN JA: The orders of the Court will be as announced by Hidden J. **********