District Court New South Wales Medium Neutral Citation: R v Steller [2017] NSWDC 274 Hearing dates: 21 July 2017 and 28 July 2017 Decision date: 28 July 2017 Jurisdiction: Criminal Before: Bright DCJ Decision: Sentenced to a non-parole period of 2 years and 4 months and a balance of term of 1 year. Catchwords: CRIMINAL LAW – Sentence – assault occasioning actual bodily harm – common assault – recklessly wound. Legislation Cited: Crimes (Sentencing Procedure) Act, 1999 Crimes Act 1900 Cases Cited: Attorney General's Application No 1 of 2002 (2002) NSWCCA 518 R v De Simoni (1981) 147 CLR 383 R v Pitcher Unreported 19 February 1996 R v Smith [2005] NSWCCA 286 R v Palmer [2005] NSWCCA 349 Category: Sentence Parties: The Crown Christine Steller Representation: Counsel: Ms Suters – Offender Solicitors: Ms Henry – Crown File Number(s): 2013/00306812 Publication restriction: There is to be no publication of the names of the complainants or any material which may tend to identify the complainants. Judgment 1. Christine Steller (born November 1961, aged fifty-five years, the "offender") appears for sentence having pleaded guilty at the Newcastle District Court on 15 November 2017 to the following offences: * Count 1: Between the 1st day of April 2012 and the 30th day of April 2012, at Lakelands in the State of New South Wales, did assault HN thereby occasioning actual bodily harm to him (section 59(1) Crimes Act 1900). * Count 2: Between the 1st day of October 2012 and the 30th day of October 2012, at Lakelands in the State of New South Wales, did assault HN (s61, Crimes Act 1900). * Count 4: Between the 1st day of October 2012 and the 30th day of October 2012, at Lakelands in the State of New South Wales, did assault HN thereby occasioning actual bodily harm to him (s59(1) Crimes Act 1900). * Count 5: Between the 26th day of January 2013 and the 29th day of January 2013, at Lakelands in the State of New South Wales, did assault HN thereby occasioning actual bodily harm to him (s59(1) Crimes Act 1900). * Count 6: Between the 26th day of January 2013 and the 29th day of January 2013, at Lakelands in the State of New South Wales, did recklessly wound HN (s35(4) Crimes Act 1900). * Count 8: Between the 1st day of April 2013 and the 31st day of May 2013, at Lakelands in the State of New South Wales, did assault HN thereby occasioning actual bodily harm to him (s59(1) Crimes Act 1900). * Count 9: Between the 1st day of August 2013 and the 31st day of August 2013, at Lakelands in the State of New South Wales, did assault HN (s61 Crimes Act 1900). * Count 10: Between the 1st day of August 2013 and the 31st day of August 2013, at Lakelands in the State of New South Wales, did assault AN thereby occasioning actual bodily harm to her (s59(1) Crimes Act 1900). * Count 11: Between the 1st day of July 2013 and the 30th day of September 2013, at Lakelands in the State of New South Wales, did assault AN thereby occasioning actual bodily harm to her (s59(1) Crimes Act 1900). * Count 12: Between the 8th day of September 2013 and the 10th day of September 2013, at Lakelands in the State of New South Wales, did assault AN thereby occasioning actual bodily harm to her (s59(1) Crimes Act 1900). * Count 13: On the 4th day of October 2013, at Lakelands in the State of New South Wales, did assault HN thereby occasioning actual bodily harm to him (s59(1) Crimes Act 1900). 1. The maximum prescribed penalties are as follows: 1. Assault occasioning actual bodily harm – 5 years imprisonment. 2. Common assault – 2 years imprisonment. 3. Reckless wounding –7 years imprisonment, prescribed standard non-parole period 3 years. 1. The offender has also asked that the Court take into account further offences on 2 Form 1 documents as follows: 1. In relation to count 6 - 2 further offences of common assault and neglect child in her care in relation to HN. 2. In relation to count 11 - 2 further offences of common assault and neglect child in her care in relation to AN 1. The pleas of guilty were entered in the week before the matter was to proceed to trial on 21 November 2016. Having regard to the timing of the plea I propose to allow a discount of 15%. Agreed Facts 1. The offender was born in November 1961 and is now fifty-five years of age. She is the natural mother of the two victims, HN (born September 2000, now sixteen years of age) and AN (born January 2003, now fourteen years of age). 2. The father of the children was ARN who passed away from cancer in 2014. The offender and ARN had separated in 2004 but had remained in contact with ARN driving her and the children to wherever they needed to go. 3. The children lived with the offender at the time of the offences. They were removed from her care upon her arrest on 11 October 2013. Background 1. The offender imposed unusual routines and practices on her children within the family home. The offender engaged in and made her children engage in elaborate cleaning rituals throughout the house which often took the children all afternoon to complete. If the children did not perform the task to their mother's satisfaction, abuse and punishment would follow. When the children returned home from school, they would have to undress outside, hang their school uniforms in the garage and go through a ritual for removal of shoes and socks and cleaning of feet. They would then have to take turns walking on the offender's feet to the bathroom. They would remain in the bathroom for some time whilst the offender vacuumed where they had walked and performed other tasks. The offender would then get in the shower with HN and shower herself. Once she was showered, she would then direct him to shower and clean the shower. She would also bathe AN. If the children had not completed all of these tasks by a set time, the offender would refuse to get them dinner saying it was too late. 2. It was common practice for the children to be punished by not having meals. The children were regularly given "Up and Go" drinks instead of meals. 3. The children were not allowed in the kitchen and had only been in there a couple of times since they had moved in to the residence in 2007. They were not allowed to get food from the kitchen. 4. During the school holidays, they would go out every few days and the children would eat out for lunch but on other days at home food was not always provided. If they were permitted to eat, the offender would prepare a large bowl of food that they would all share and she would feed them from the bowl. 5. HN was regularly forced to stand for hours in the hallway as punishment. 6. HN was made to sleep in the garage on a mattress a number of times as punishment. Over the Easter long weekend in 2013, HN slept in the garage three nights in a row. 7. The offender would task AN with observing HN whilst he carried out chores or showered himself. She had to report back to the offender is HN failed to do things adequately. HN would then be punished. 8. The offender and her two children all slept together in the same bed. The children did not have pillows to sleep on but slept on a bathroom mat and a towel laid on the sheet. The children then had to shake those off and spray the bed in the morning. The reason given for sleeping together was because the offender's room had a fan in it so was cooler in summer and warmer in winter when they were all together and saved on washing. 9. HN was not allowed in his room unless his mother or his sister was standing with him. He did not know why. 10. The children did not see friends outside of school. They were not permitted to have telephone contact with their father unless it was on speaker phone. They were not permitted to use a computer at home. 11. The children were regularly given lines or "affirmations" to write out as punishment. One of those lines was "I always live with love, honesty, impulse control, efficiency, logic, humility, respect and empathy." HN was regularly made to write letters of apology by the offender. The offender threatened HN that she would show those letters to the school to prove how bad he was if he said anything about what was occurring at home. 12. Being forced to sleep in the bath and the shower was another form of punishment imposed on the children by the offender. On one occasion between 1 July 2013 and 30 September 2013, AN was made to sleep in the bath tub and HN was made to sleep in the shower for two nights. They were both given old clothes to put on by the offender and a towel to lie on. They were not allowed out of the bathroom for the duration of the two days. Both children were made to urinate down the drain if needed. Neither of them had anything to eat during the time they were confined to the bathroom but were given herbal tea. HN was doing his "affirmations" whilst he was in the bathroom. The children would not leave the bathroom as they had been told not to and feared the repercussions if they did. 13. When the offender caused injuries to the children, she would provide them with a story explaining the injury and then make them rehearse it at home. The offender called these stories "safety lies." Observations of Teachers and Background to disclosure 1. Towards the end of 2011, when HN was in Year 5 at [redacted] Public School, one of the teachers, Jennifer Dutch, noticed his skin was becoming paler. In 2013, it was observed that AN's skin was becoming pale. Teachers noticed that the children sat together and held hands and didn't really interact with other children. They also always wore long pants and sleeves regardless of the weather. 2. In April 2012, Jennifer Dutch, who had been appointed Assistant Principal at [redacted] Primary School, began recording her concerns about HN's physical appearance. She also kept notes of conversations she had with the offender about his health. She noted bruising and scratches on his face on four occasions. HN's work and motivation declined throughout 2012 but he was still awarded dual dux of [redacted] Primary School in 2012. HN was a gifted and talented student who had always been first in his class. 3. School records show that both of the children had extensive absences from school throughout 2012 and 2013. HN stated that some of the time he had off school was due to injuries suffered at the hands of the offender. 4. HN started High School at [redacted] in 2013. Joanne Riley, Head Teacher Welfare, noted the injuries HN had when he started High School. He had a purple left eye and lots of band aids. She noted that he was pale and skinny. Due to her concerns, Ms Riley began noting the injuries to HN at the beginning of each week. She noted that his injuries were usually worse on Mondays and Tuesdays. She made nine entries in her diary regarding injuries. 5. Ms Riley made a notification to the Department of Community Services (DOCS) in February 2013. 6. A number of teachers at the school were expressing concern about HN's well-being as well. Following concerns raised by teachers at the school, Ms Riley made another referral to DOCs in March 2013. 7. On 25 March 2013, Ms Riley took a photo of HN showing the injuries to his face and neck. She contacted his family doctor, Dr Catherine Hayes, and informed her that DOCS would not do anything unless there was a second referral from another source. 8. Whenever HN was questioned about his injuries, he would always provide an innocent explanation. 9. On 15 May 2013 during NAPLAN, HN had completed his exam and was found by a teacher writing a letter. The teacher took the letter which caused HN to become very anxious because he had to have it completed by the end of the day. Each line in the letter contained the words "from the 15.5.13 I promise you mumma that I will vacuum the house. I am sorry that I have been bad." Each statement was on a new line. Another line started "Dearest mumma and AN, I am sorry and promise you that from the 15.5.13 I will … ." There were 4 A4 pages containing such statements. Ms Riley spoke to HN after the exam about the letter and he began to cry which he had never done before. HN said that he had been bad and his mother expected an apology that day and he would be punished if he did not give the letter to his mother. 10. On 9 October 2013, Ms Riley saw HN with a very black eye and deep red marks on his neck. She questioned him and he finally broke down and cried, disclosing that he was being beaten by his mother. HN told Ms Riley that all of his injuries throughout the year had been caused by his mother. Ms Riley contacted DOCS and handed the phone to HN who provided them with details. 11. The children were removed from the care of the offender that day. The children's school teachers noticed an immediate improvement in the children's physical, emotional and mental well-being once they were removed from the offender's care. 12. On 10 October 2013, HN participated in a lengthy interview where he detailed abuse at the hands of the offender. He participated in a second interview on 11 October 2013 and a third on 5 November 2013. 13. On 15 October 2013, AN participated in an interview where she detailed the abuse suffered at the hands of the offender. She also participated in a second interview on 5 November 2013 providing further information. 14. On 10 October 2013, HN was examined by Dr Anne Piper, Specialist Paediatrician at John Hunter Hospital. She also examined him and his sister on 16 October 2013, 4 December 2013 and 19 February 2014. Dr Piper carried out tests to establish that HN did not suffer from any condition which caused him to bruise easily or from any bleeding disorder. 15. Dr Piper also carried out tests relating to alleged food intolerances and allergies and found no medical reason for HN's malnourished appearance when first removed from his mother's care. Dr Piper notes that on 14 September 2012, HN's BMI was in the normal range. Dr Piper further noted that on 10 October 2013, HN's BMI had fallen to below the normal range. Both children were tested for a number of medical issues that the offender had claimed they suffered from with each child returning normal findings. Once placed into care, the children began eating a normal and varied diet with no issues reported. They also gained weight and grew steadily. Count 1 – AOABH – HN 1. The offender's practice was for HN to get in the shower with her and stand in the corner and face the wall whilst the offender showered first. On one occasion between 1 April 2012 and 30 April 2012, the offender got angry with HN whilst they were in the shower. She grabbed the back of his head and neck area and pushed his head into the wall of the shower recess. HN's face hit the wall with a loud bang. HN said "Why did you do that?" and started crying. The offender then said "Oh turn around and look at me" and then poked her soapy fingers into his eyes causing further pain. Within minutes, HN looked up and could see a lump bulging on his eyebrow area. After HN got out of the shower, his eyes had started to blacken with bruising. The offender gave him an icepack but both eyes turned black with bruising which spread down onto his nose. By the next morning, his left eye was swollen shut and his right eye was almost swollen shut. The offender put a patch on his eye the following day and HN had several days off school following this offence. He was 11 years of age at the time of this offence. Count 2 – Assault – HN 1. Sometime between 1 October 2012 and 30 October 2012 after the children came home from school, the offender asked HN if he had done his "lines". The offender was in the habit of forcing HN to write out 200 lines a day. He told her that he had not done them and the offender became angry with him. She began calling him names and told him to come to where she was standing at the front door. He said "No, I'm not going there, I'm not coming near you." The offender said "No come close, come on, come here now." HN said "As long as you promise you won't hurt me." The offender said "I promise." HN walked towards her and she grabbed him by the hair to pull him towards her. HN saw that some of his hair was pulled out and laying on the ground. The offender then dug her nails into his neck causing pain. Count 4 – AOABH – HN 1. Early in 2012, HN suffered a dislocated finger when his sister accidentally pushed her foot against his hand on the lounge. The offender popped his finger back in on that occasion and it was swollen. His finger would swell up after that time if bumped. 2. Immediately following the assault in Count 2, the offender grabbed HN's arm with one hand and used her other hand to grab his finger and bend it back. HN heard a big crunch. The offender said "Come on you baby, it's not that bad" and then popped the finger back in. HN cried for some time due to the pain and his finger quickly became swollen. The offender said "Oh come on, it's not going to be that bad. It's just swollen and bruised, it will get better within a few days." 3. On 9 November 2012, the offender took HN to see their family doctor, Dr Catherine Hayes. The offender told HN to say that he had dislocated his finger on his school bag when the zipper got stuck. He was made to rehearse that story to ensure that he remembered it correctly. Dr Hayes noted an xray showed no fracture or dislocation. 4. HN had to have his fingers strapped for a period of time. He was seen in the Orthopaedic Clinic on 27 December 2012 and it was recorded that there was a dislocation according to his mother about 9 weeks prior and that there had been a visit to the GP after it had occurred. The Clinic records indicate that there was decreased sensation to the fingertip and the finger was unable to be fully straightened. HN was seen for a regular follow up and Boutonnieres deformity (finger not able to be straightened and tip bent backwards) was recorded as a result of the dislocation. 5. HN was 12 years old at the time of this offence. Count 5 – AOABH – HN 1. On one occasion between 26 and 29 January 2013, HN was standing in the hallway at about 2am writing a letter at his mother's direction. The offender got angry with HN and as she would walk past him, she would hit him. She punched him in the face causing a black eye and bleeding to the inside of his mouth. The offender used a baby wipe to scrub the blood from inside HN's mouth which caused him further pain. HN was 12 years of age at the time of this offence. Count 6 – Reckless wound - HN 1. About five minutes after the above offence, the offender then went to the kitchen and got a hard plastic egg flip. She walked up to HN and hit him on the head with the edge of the egg flip. AN woke up because her mother was shouting. HN's head began to bleed with blood running down his face and on to the book he was writing in. HN said "I'm bleeding" and the offender said "No you're not, just forget about it, you're fine, you're fine." The offender then looked at HN and said "what have you done now?" and accused him of scratching his head with the pen and cutting his head. The offender gave him paper towels to put on his head which quickly soaked through. The offender got some more paper towels and told him to push on his head. The offender then started shouting at him for ruining the exercise book because it had blood on it. The offender then pulled HN by his shirt to the bathroom and made him bend over the bathtub whilst she rinsed the blood from his hair and face. Whilst HN was bent over the bathtub, the offender kneed him in the coccyx a number of times. (Form 1 - Assault) 1. HN began the school year with bruising to his face and band aids in his hair to cover the wound to his head. His mother told him to tell people that he had been playing football with some small children in the park and they tackled him causing his injuries. HN had to rehearse the story and tell everyone at school who asked. 2. HN was 12 years of age at the time of these offences. 3. HN was examined by Dr Piper on 11 October who observed a 1.2cm scar on his scalp. Count 8 - AOABH - HN 1. Between 1 April and 31 May 2013, the offender got angry at HN for misbehaving. As punishment, the offender grabbed HN's penis and testicles and pulled hard. HN then had to go to the toilet and forgot to ask his sister to come and watch as they were supposed to do. This made the offender more angry and she pulled on his penis again and threatened to castrate him with a rusty blunt knife. HN felt shooting pain and burning to his penis. He later checked his penis and saw that the skin was split and bleeding. This caused pain to HN and he had difficulty going to the toilet. At the time of this offence, the offender was swearing at HN and calling him names. 2. HN was 12 years of age at the time of this offence. 3. HN was examined by Dr Piper who observed a scar on the front of his penis 1.5cm in length approximately 1 cm from the base of the front of the penis. Count 9 – Assault – HN and Count 10 – AOABH - AN 1. Between 1 August 2013 and 31 August 2013, HN and AN told their father that there was a party at school so he would buy them some food. The children did this because of the limited amount of food provided by their mother. They kept the food in their bags and lockers at school. After questioning by the offender, AN told her mother that HN had the food. The offender started shouting and grabbed HN by the hair pulling out a huge clump of his hair. She then grabbed him around his neck, hit him on the arm and punched him on the head. 2. The offender then got angry with AN and repeatedly punched her on the arm causing bruising and pain. The offender placed a compression bandage on AN's arm to cover the bruising. 3. The offender took the food from HN's bag. HN handed the biscuits back to his father that he had in his locker at school. 4. HN was 12 years of age and AN was 10 years of age at the time of these offences. Count 11 – AOABH – AN 1. Between 1 July 2013 and 30 September 2013, on an occasion that the children were made to sleep in the bathroom, AN woke up in the bath and needed to urinate. She called to the offender telling her she really needed to go to the toilet. The offender said "Well just pee in the bath." AN said "I don't want to do that, please can you come?" The offender said "it's 2 o'clock in the morning and you want me to come and help you?" The offender then bought a plastic bag into the bathroom for AN to urinate in and then gave her baby wipes to wipe herself. The offender then got angry with AN because a couple of drops of urine went inside the bath. The offender said "Why did you do that?" She then said to AN "Look, because you made me so stressed, my hair clip's starting to fall out." The offender then removed the clip from her hair and poked it into AN's arm about five or six times causing the skin to peel back. The offender then tied up the plastic bag, turned the lights off and left them in the bathroom. 2. About two hours later, the offender returned to the bathroom and told AN she must have injured herself in her sleep. AN said "Oh it must have happened" and HN said "Yeah it must have". They agreed with the offender as AN knew that if she disagreed, the offender would get angrier at her. 3. AN was 10 years of age at the time of this offence. Form 1 – Assault – AN 1. Between 1 July 2013 and 30 September 2013, about a week or two after the previous assault, AN was in the bath and HN was in the shower. HN accused his sister of putting more hot water in the bath which caused the offender to enter the bathroom and get angry at AN. The offender put more cold water in the bath and turned off the taps. AN said "That's not fair … I didn't even touch a tap." The offender said to AN "Do you want me to punch you in the arm again?" AN said "No" and cried. The offender said "Well stop crying" and punched her bruised arm again. AN said "Why did you do that, I didn't even touch it, I didn't do anything, he's lying." The offender told her to rub her arm really hard. 2. The offender told the children they were not having dinner that night. AN was 10 years of age at the time of this offence. Count 12 – AOABH – AN 1. On one occasion between 8 September 2013 and 10 October 2013, AN was in the bath. HN and the offender had already had their showers. The offender was angry at AN. The offender came into the bathroom and began rinsing off AN with the shower hose. The offender said to AN "Why are you telling lies?" AN said she had told the truth and the offender said "Well no, there's something else missing." The offender turned the cold water onto AN and then hit her with the shower hose head. The shower head had spikes for the water jets. The offender hit AN on the fingers and her knee once and then on her head about three times causing bleeding from each area. The offender then made AN sleep in the bath without clothes. AN lay in the bath crying and shivering and did not sleep much that night. 2. AN was 10 years of age at the time of this offence. Count 13 – AOABH - HN 1. On 4 October 2013, HN was doing some weeding in their backyard which was one of his designated chores. He told the offender that he should have it finished by the time they were ready to go out. Their father was picking them up to take them to Charlestown Square. When it was time to go, the offender called out to HN to come around the front and open the door. She asked if he had finished and he said he hadn't. The offender then got very angry at HN which made him upset. HN went into the garage to obtain some bags and the offender came up behind him. HN hit the offender to the chest and hip area. The offender then grabbed him from behind around his stomach to calm him down. HN shouted "Let go, let go." AN started crying. HN tried to wriggle his way out of her arms and grabbed her arms to separate them. The offender then pushed him forward causing him to fall onto a dryer, hitting his face and his arm. HN was crying and asking his mother "Why are you doing this?" The offender walked off but then returned and grabbed him around the neck digging her fingernails into his neck and squeezing his neck. HN was having difficulty breathing and couldn't talk. The offender said "Why did you do that? Why did you do that?" and called HN a "fucking arsehole". The offender then let go of HN and walked away shouting at him. 2. HN and AN's father then arrived to drive them to the shops. ARN got out of the car and consoled his son and calmed him down. The offender and AN waited in the car. When HN got in the car, he apologised to his mother. His mother said that HN had been pulling out some wisteria and he was allergic to it and got it on his face and rubbed his face. The offender told ARN that HN was so irritable because of that. HN did not feel he could complain to his father for fear of repercussions from his mother. 3. Later that day, the offender made HN write a letter of apology. 4. HN suffered a black eye and bruising from this offence. His throat hurt for a few hours afterwards. He was 13 years of age at the time of this offence. 5. When HN was examined by Dr Piper, she observed bruising around his eye and on his arm. Form 1 – Failure to provide necessities - HN and AN 1. On 4 October 2013, HN and AN were made to sleep in the bathroom by the offender. They were having their baths at about 9.00pm when the offender came into the bathroom and said "that's it, I've decided that you guys are going to sleep in the shower and the bathtub". The offender said she was getting really sick and started shouting. HN had to remain in the shower cubicle sleeping on the shower floor and AN had to sleep in the bathtub. They were not allowed to leave the bath or shower and had to go to the toilet by urinating in the drain. HN was given his sister's old pyjamas to wear which were too small for him to pull up his legs. AN needed to go to the toilet during the night and the offender came into the bathroom and told her she had to urinate in the drain. AN did that and the offender got angry with her because she was not leaning forward enough to ensure that the urine went down the drain and not splash. Her mother said "I've had enough of you not helping me at all. You never help me with anything." The offender then got a bowl and filled it with water and washed the urine down the drain. She then said "OK time to go to sleep" and the children had to remain in the bath and the shower. 2. HN and AN were given a drink of lemonade and no food on the Friday night that they slept in the bathroom. They were not given any food until they were given an "Up and Go" drink on the evening of Monday 7 October 2013. 3. HN was 13 years of age and AN was 10 years of age at the time of these offences. Arrest and Interview 1. On 11 October 2013, the offender was arrested and police searched her home. Police located a number of documents written by HN containing "line" and apologies. The offender participated in an interview with police where she denied the majority of the allegations and provided explanations for others. She made the following admissions: * HN slept in the shower last Friday night and AN in the bath. HN stayed in the shower from 6pm to 11am the following morning. She had put a towel over him. She checked on AN in the bath at 2am and she said she was fine. She put a blanket over her at 2am. * The children had nothing for dinner Friday night and thinks it was the next afternoon before they ate something. * HN has gone without dinner half a dozen times as punishment. * She remembers one time when there was a cut and blood in his hair but he got it from someone's finger nails. * She had made HN stand in the hallway to calm down sometimes up to an hour. 1. After her arrest, the offender admitted herself to the Mater Mental Health Unit. She was assessed by Psychiatrist Dr Tanya Hall who gave a primary diagnosis of obsessive compulsive disorder with poor insight. Consideration 1. The Agreed Facts disclose very serious offending. For the victims to be treated in such a way by their mother is abhorrent and is deserving of significant punishment. 2. Not only were the victims exposed to repeated acts of violence but the emotional depravity was extreme. On occasions the offender would require the victim HN to rehearse a false account of how his injuries were sustained so that no suspicion would be aroused. This emotional manipulation is particularly reprehensible. 3. Both victims were deprived of the love and support that they were entitled to expect from a parent. Children expect that they will grow up protected and nurtured by their parents. It is the fundamental right of every child to feel safe and secure in their home. The Courts must send a clear message to the community that such conduct will not be tolerated and will be met with condign punishment. General deterrence is a significant consideration. In R v Pitcher Unreported 19 February 1996 Cole JA stated as follows: "Young children cannot protect themselves from the acts of adults. They cannot lodge complaints about criminal behaviour perpetrated upon them. They are entirely reliant upon their parents or those in custodial situations to care for them and protect them. …….the only protection which society can give to young children is the protection afforded by the courts. The courts must make clear by their sentences that acts of violence on young children, whether within or without a custodial situation, will not be tolerated in our society, and that criminal acts of violence against young children will result in appropriately severe sentences. Deterrence through the severity of sentence, is the only way in which young children can be protected." Whilst R v Pitcher involved a very young child I consider the principles are equally applicable to the present matter given the particular circumstances in which HN and AN were living. Assessment of Objective Criminality 1. An assessment of the objective criminality for each offence cannot properly be undertaken in this case without having regard to the circumstances in which the victims were living at the time of the commission of the offences. HN was 11-13 years old and AN was 10 years old. They were living alone with the offender in an environment of extreme social and emotional deprivation. There was a complete disregard for their emotional welfare by the offender. The environment prevailing at the time of the commission of the offences could properly be described as completely devoid of any love and affection. 2. Each offence was an episode of domestic violence. The conduct was not a result of a momentary lapse of control but was rather a sustained course of conduct during which the offender subjected the victims to repeated episodes of violence. It is likely the children were living in a state of constant fear and anxiety. The offender's conduct was cowardly and inexcusable. It is against this background that the objective criminality for each offence should be properly assessed. Count 1 – Assault occasioning actual bodily harm. 1. The conduct constituting the assault was pushing HN's head into the shower wall causing a lump to bulge on the victim's eyebrow area, swollen black eyes and nose. By the following day HN's left eye was swollen shut and his right eye was almost swollen shut and he had several days off school. HN was 11 years old at the time of the commission of this offence. There was no explanation for the offender's conduct other than she was angry. I assess the offending as being in the middle of the range of objective seriousness. Count 2 – Common assault. 1. The conduct constituting the assault was grabbing HN by the hair and pulling until a clump of hair pulled out, then digging her nails into his neck. This conduct was "punishment' because the child had not written out 'lines' for the offender. I assess the offending as being just below the middle of the range of objective seriousness. Count 4 – Assault occasioning actual bodily harm. 1. The conduct constituting the assault was the dislocation of HN's finger by bending it back. There was no explanation for this conduct. HN was 12 years old at the time of the commission of this offence. The offender told HN to give a false account to medical staff in relation to how his injury had been sustained. I assess the offending as being just below the middle of the range of objective seriousness. Count 5 - Assault occasioning actual bodily harm. 1. The conduct constituting the assault was punching HN in the face causing a black eye and bleeding to the inside of his mouth. HN was 12 years old at the time of the commission of this offence. There was no explanation for the offender's conduct other than she was angry. I assess the offending as being in the middle of the range of objective seriousness. Count 6 – Reckless wounding + Form 1 offences (common assault and neglect) 1. The conduct constituting the reckless wounding was hitting HN on the head with an egg flip causing a wound. There was no explanation for this conduct. HN was 12 years old at the time of the commission of this offence. Whilst the wound inflicted was towards the lower end of seriousness for this type of offence the use of the weapon and the age of the victim at the time significantly increase the criminality. Having regard to all the circumstances I find that the offending is within the middle of the range of objective seriousness. Form 1 – Common assault 1. The conduct constituting the assault was repeatedly kneeing HN in the coccyx whilst she was rinsing blood from his head following the offence in Count 6. Form 1 – neglect child in care 1. On 4 October 2013 the offender made HN sleep in the shower cubicle for the night and did not provide him with any food for 3 days. Count 8 – Assault occasioning actual bodily harm 1. The conduct constituting the assault was grabbing HN's penis and pulling it hard twice causing the skin to split. At the time of the assault the offender threatened to castrate HN with a rusty blunt knife. For the purpose of assessing the objective seriousness I have not taken into account that such conduct would also constitute an indecent assault. To do so would offend R v De Simoni (1981) 147 CLR 383. HN was 12 years old at the time of the commission of this offence The explanation for this conduct was that the offender was angry with HN for misbehaving. I assess the offending as being just below the middle of the range of objective seriousness. Count 9 – Common assault 1. The conduct constituting the assault was grabbing HN by the hair and pulling until a clump of hair came out, grabbing him around the neck, hitting him on the arm and punching him in the head. The explanation for this conduct was that the offender had discovered that HN had food in his school bag. HN was 12 years old at the time of the commission of this offence. I assess the offending as being in the middle of the range of objective seriousness. Count 10 – Assault occasioning actual bodily harm 1. The conduct constituting the assault was punching AN on the arm repeatedly causing bruising and pain. The offender placed a compression bandage on AN's arm to cover the bruising. AN was 10 years old at the time of the commission of this offence. I assess the offending as being below the middle of the range of objective seriousness. Count 11 – Assault occasioning actual bodily harm + Form 1 matters (common assault and neglect) 1. This offence occurred on an occasion when both HN and AN were made to sleep in the bath by the offender. The offender would not allow AN to leave the bathroom to go to the toilet and made her urinate in a plastic bag. She then became angry with AN when a couple of drops of urine went inside the bath. The offender then repeatedly poked a hair clip into AN's arm causing her skin to peel back. The offender returned to the bathroom 2 hours later and told AN she must have injured herself in her sleep. Both victims agreed so that the offender would not become angry. AN was 10 years old at the time of the commission of this offence. I assess the offending as being below the middle of the range of objective seriousness. Form 1 * Common assault - In respect of this count a further offence of common assault is to be taken into account on a Form 1. The conduct constituting the assault was a punch to the complainant's arm. This was the arm that had already been bruised as a result of the conduct in count 10. The offender had become angry with AN whilst she was in the bath. AN was 10 years old at the time of the commission of this offence. * Neglect child in care – On 4 October 2013 the offender made AN sleep in the bath for the night and did not provide her with any food for 3 days. Count 12 – Assault occasioning actual bodily harm 1. The offender became angry with AN. The conduct constituting the assault on this occasion was repeatedly hitting AN with a shower head to her head (about 3 times), fingers and her knee causing bleeding from each area. After assaulting AN the offender then made AN sleep in the bath without clothes on. AN was 10 years old at the time of the commission of this offence. I assess the offending as being in the middle of the range of objective seriousness. Count 13 – Assault occasioning actual bodily harm 1. HN became involved in an incident with the offender in the garage. The conduct constituting the assault was the offender pushing HN causing him to fall onto a dryer hitting his face and arm and then digging her fingernails into his neck and squeezing his neck to the extent that HN was having trouble breathing and could not talk. HN suffered a black eye and bruising on his arm. His throat hurt for a few hours afterwards. HN was 13 years old at the time of this offence. I assess the offending as being above the middle of the range of objective seriousness. Aggravating features 1. The Crown relied upon the following aggravating features: 1. Count 6 involved the use of a weapon, namely an egg flip which she used to hit HN on the head. I am satisfied this aggravating feature is established. 2. Counts 10, 11 and 13 were committed in the presence of a child under 18 years. I am satisfied this aggravating feature is established. 3. All offences were committed in the home of the victims. I am satisfied this aggravating feature is established. 4. Counts 4, 8 and 12, involved gratuitous cruelty. In R v Smith [2005] NSWCCA 286 it was held that the throwing of hot water onto a child did not constitute gratuitous cruelty. Latham J said at [37] that gratuitous cruelty: … is less likely to be present where an intentional act gives rise to injuries which were contemplated by the offender as possible, but no more, as opposed to offences involving deliberate, calculated torture or where the type and degree of harm inflicted is part of the offender's desire to degrade and humiliate the victim. Of course, it is not possible to neatly define the categories of offences in which gratuitous cruelty will feature. " Having regard the nature of the conduct in counts 4 (bending back finger), 8 (pulling penis) and 12 (using shower head to strike AN) I am not satisfied this aggravating feature is established. Victim Impact Statements 1. Each of HN and AN prepared a Victim Impact Statement. They both showed a level of maturity and insight well beyond their young ages. HN is now sixteen years old and AN is now 14 years old. 2. HN outlined the impact upon him in the following terms: The anguish and sorrow I've felt as a result from my mother's "care" has trumped all that she ever did. I very quickly learned to become a husk. To just focus on breathing and telling myself that I did have the energy to stay alive. To stay awake. Although I did falter, I always got up. But after I ran from the hell of my childhood, it still haunted me. Nightmares, fear, being scared of someone just because they raised their voice. I once had a panic attack that lasted two hours, just because someone yelled at me. I was whimpering and curled in the foetal position after an argument with a relative. I was so scared. That you had poisoned those around me into torturing my every living breath free of you. I worried that you had corrupted them into your minions or servants, to make sure that just because I escaped you, that I didn't escape the torture of being with you. I wept at the thought. I dreamed of you and others stabbing me in the night, of the horrible wounds that you had inflicted upon me. I still can't deal with the thought of some pretty normal things like camping in small beds or just talking near someone, because I'm scared it will be you who haunts every moment. 1. AN outlined the impact upon her. Both AN and HN were placed in separate foster care. She rarely sees her brother. She indicated she has ongoing anxiety and occasional anger issues. She sees a counsellor fortnightly for the foreseeable future. 2. In circumstances where both HN and AN are clearly intelligent and resilient children one can be hopeful that they will now be able to look forward to their future lives. 3. One of the purposes of sentencing is to recognise the harm done to the victims (s3A(g), Crimes (Sentencing Procedure) Act 1999). Subjective Circumstances 1. The offender is now fifty-five years old. 2. The offender has no criminal history. I regard the absence of prior criminal convictions as of limited assistance in mitigation having regard to the ongoing nature of the offending. 3. The following material was tendered on behalf of the offender: 1. Report of Dr Jonathon Adams dated 5 February 2016; 2. Report of Dr Jonathon Adams dated 26 June 2017; 3. Letter from Dr Tom Bellamy dated 10 July 2017; 4. Letter from Dr Catherine Hayes dated 11 July 2017; 5. Letter from Betty Stokes (undated); 6. Letter from Dr Tom Bellamy dated 24 March 2016; 7. Letter from Dr Catherine Hayes dated 8 March 2016; and 8. Copy of Final AVO dated 9 July 2002. 1. The offender's background is set out in the report of Dr Jonathon Adams dated 5 February 2016 (Exhibit 1). 2. The offender recounted an unremarkable childhood apart from alleged physical abuse by an older sibling. She denied any significant medical problems as a child. 3. She described a normal progression through school leaving when she was seventeen years old. 4. After leaving school she qualified as a hairdresser through TAFE. She worked as a hairdresser for a short time before joining the Commonwealth Bank at twenty years of age. Whilst working at the Bank she was present during two armed robberies which resulted in a deterioration of her emotional state and resultant post-traumatic stress disorder. She remained working for the bank for six to seven years and then moved to Canada where she worked in the Treasury Department of the City of Vancouver. She remained in Canada for five years. 5. She met her first husband in Canada. They were together for ten years before separating. 6. Upon returning to Australia, the offender began working for Willoughby Council in the Corporate Services department. 7. She met her second husband (the natural father of HN and AN) in 1999. That relationship was marred by domestic violence which caused the offender to have anxiety and panic attacks. The offender told the psychiatrist that she was prevented from undertaking paid employment by her second husband. She has been in receipt of a disability pension since 2012 as a result of various medical problems. 8. She separated from her second husband in 2004. She became the primary carer for HN and AN. Her second husband died in 2014. 9. The offender told the psychiatrist she had a "beautiful" and "very close" relationship with both her children and said that she never experienced any ideas of wishing to harm her children. 10. I note that this comment was made to the psychiatrist in February 2016 when the offender also denied to the psychiatrist any involvement in the offending behaviour. Mental Health 1. The psychiatrist conducted a mental state examination. 2. There was no evidence of psychomotor agitation or hostility. She appeared in a normal mood state and was not depressed or elated. There was no evidence of thought disorder or delusional beliefs. 3. She recounted experiencing ruminating negative thoughts in relation to her traumatic history but denied persistent depressive cognitions. There was no evidence of hallucinations. She was oriented in time, place, person. 4. The psychiatrist concluded that there was no evidence to suggest the offender suffered with a major mental illness such as mood disorder or psychosis. He stated: "She referred to her tendency to endure obsessive beliefs with some ritualistic behaviours, but during my assessment she minimised the impact of this upon her functioning." 1. The offender had a voluntary admission to the Mater Mental Health Unit for 3 weeks after her arrest. No psychiatric medication was prescribed. Since then she had regularly seen Dr Bellamy. 2. She has no alcohol or drug issues. 3. She has numerous medical problems described as follows: "…arthritis in her hands and feet; advanced facet degeneration; lumbar spine damage; sacroiliac joint damage; sciatica, lymphatic problems in her legs; walking with the aid of a walking stick; hysterectomy; various injuries as a result of abuse; Sjogren's syndrome; Sicca syndrome; sinus surgery; bursitis in both shoulders; complicated caesarean section in 2000 resulting in bladder damage; gallstones; gastroesophegeal reflux disease; and thyroid nodules under ongoing investigation." Causal link between mental health and offending 1. Having regard to the evidence of Dr Adams I am not satisfied there is any causal link between the mental health of the offender and the offending that would reduce her moral culpability. Whilst her obsessive compulsive traits may explain why she chose to regularly punish her children it does not explain the manner in which she chose to punish, that is, by repeated episodes of violence. 2. Dr Adams most recently examined the offender on 13 June 2017. He was of the opinion that there had been no significant change in the offender's appearance and behaviour since his previous assessments. 3. Dr Adams remained of the view that the offender suffers from post-traumatic stress disorder. He was unable to provide a definitive opinion about any relationship between the offender's psychiatric history and the offending behaviour. 4. He was of the opinion that a custodial sentence would have a negative impact on the offender. 5. A report prepared by Dr Catherine Hayes, who is the offender's current doctor, indicates the offender is currently on medication for anxiety (see Exhibit 4). 6. There is no evidence before me of any remorse. 7. I am satisfied the offender is unlikely to reoffend in circumstances where it is unlikely that she will ever have any children in her care. I am satisfied she has good prospects of rehabilitation particularly if she maintains her current motivation to engage with mental health professionals. Matters could have been dealt with in the Local Court 1. Ms Suters on behalf of the offender has submitted that a relevant matter on sentence is that all matters could have been dealt with in the Local Court. Ms Suters further submitted that counts 10, 11 and 12 in relation to AN do not require a custodial sentence and could properly be dealt with by way of the imposition of s9 bonds. 2. The Crown submits that this was not an appropriate matter for disposition in the Local Court and that custodial sentences are appropriate. 3. The relevant principles in relation to whether I should have regard to the fact that the matters could have been dealt with in the Local Court were summarised in R v Palmer [2005] NSWCCA 349. Having regard to those principles I am satisfied that this was not an appropriate matter to be finalised in the Local Court having regard to the objective criminality. 4. I do not agree that a non-custodial sentence properly reflects the objective seriousness and in particular, the need for general deterrence in relation to this type of offending in relation to counts 10, 11 and 12 concerning AN. Suspended sentence 1. Ms Suters further submitted on behalf of the offender that an aggregate suspended sentence was appropriate for the remainder of the offending concerning HN. I am first required to determine the length of the aggregate sentence and then consider whether it is appropriate for it to be suspended. In circumstances where the aggregate sentence that I have determined is appropriate is not less than 2 years a suspended sentence is not an available sentencing option. Form 1 offences 1. In sentencing the offender I take into account the Form 1 matters in accordance with the principles enunciated in Attorney General's Application No 1 of 2002 (2002) NSWCCA 518. In respect of the neglect offences I note that the maximum penalty is a fine so I am precluded to increase the sentences for those matters. Special Circumstances 1. Ms Suters has submitted on behalf of the offender that I would find special circumstances for the following reasons: 1. The offender has a number of medical and mental health conditions that will make her time in custody more onerous; and 2. The offender is 55 years old and it is the offender's first time in custody. 1. I accept that submission and will vary the statutory ratio between the non-parole period and the parole period. Determination 1. I have had regard to the purposes of sentencing as set out in s3A Crimes (Sentencing Procedure) Act. 2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence (section 5(1), Crimes (Sentencing Procedure) Act, 1999. 3. I have had regard to the maximum penalties. 4. I have had regard to the standard non-parole period in relation to count 6 in accordance with s54B(2), Crimes (Sentencing Procedure) Act, 1999. 5. I have had regard to s21A(2) and (3), Crimes (Sentencing Procedure) Act, 1999. 6. I propose to impose an aggregate sentence pursuant to section 53A(1), Crimes (Sentencing Procedure) Act 1999. 7. Pursuant to section 53A(2), Crimes (Sentencing Procedure) Act 1999 the indicative sentences are as follows (taking into account a discount for the plea of guilty of 15 %) Count 1 10 months Count 2 Fixed term 3 months Count 4 Fixed term 6 months Count 5 10 months Count 6 (taking into account Form 1) 1 year 8 months with a non-parole period of 1 year 2 months Count 8 Fixed term 6 months Count 9 Fixed term 5 months Count 10 Fixed term 2 months Count 11 (taking into account Form 1) Fixed term 5 months Count 12 10 months Count 13 1 year 3 months Totality 1. In order to properly reflect the totality of the criminality had I been imposing separate sentences for each offence, I would have partially accumulated the sentences having regard to the separate episodes of criminality and the separate victims. Sentence 1. Stand up please. 2. In relation to each offence, you are convicted 3. Taking into account the matters on each Form 1 I sentence you to a non-parole period of 2 years and 4 months to date from 28/7/2017 to expire on 27/11/2019 and a balance of term of imprisonment for 1 year to date from 28/11/2019, expiring 27/11/2020. 4. The total term of the sentence is 3 years and 4 months. The starting point for the sentence was 4 years discounted by 15% for the plea of guilty. 5. I have found special circumstances and varied the statutory ratio pursuant to s44(2), Crimes (Sentencing Procedure) Act, 1999. 6. The earliest date upon which you will become eligible for release on parole is 27/11/2019. 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: 13 October 2017