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  • Unreported Judgment

R v Bushby


[1973] CCA 7


C.A. No. 107 of 1973






I have had the advantage of reading the reasons prepared by the learned Chief Justice who has summarised the relevant facts. I shall not indulge in repetition.

To my way of thinking, the sentence of imprisonment with hard labour for twelve months, even though tempered by a recommendation for release on parole after five months, was manifestly excessive in the circumstances of this particular and isolated case.

The applicant's picking up and shaking of the persistently screaming baby was, as I see it, the act of an exasperated girl, unskilled in the branch of nursing to which she had just been introduced. Inexcusable as her conduct was, it was yet such that it did not occur to Nurse McLean, the eye witness to the incident, that the applicant's treatment of baby Dunn was such as to cause him injury. Though Nurse McLean was senior to the applicant, it did not move her to reprimand or report her.

It would appear that when the baby was shaken and injured, the applicant, as well as being a mere novice in the maternity branch of a skilled profession, was temperamentally unfitted to sustain the stress of nursing very young and fractious children. She has been removed from this sphere, and she may also be the target of disciplinary action under section 22(1) of The Nurses act of 1964.

Though the applicant is guilty of assault occasioning bodily harm, it does not appear to me that the assault was of the vicious kind one ordinarily encounters in charges of this nature which more normally relate to street or hotel or matrimonial brawls. It is not, as I understand it, suggested that such treatment of babies in hospital is prevalent among nurses so as to call for a large deterrent content in the sentence. Nor does it appear to me that the applicant's character is such that she needs the counsellings and guidance associated with parole.

In the result I consider that the application for leave to appeal against sentence should be granted, the appeal allowed, and the sentence reduced to imprisonment with hard labour for three months.


Editorial Notes

  • Published Case Name:

    The Queen v Penelope Kaye Bushby

  • Shortened Case Name:

    R v Bushby

  • MNC:

    [1973] CCA 7

  • Court:


  • Judge(s):

    Stable J

  • Date:

    01 Jan 1973

Litigation History

No Litigation History

Appeal Status

No Status