R v MJB[2021] QDC 170

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant has pleaded guilty to two counts of assault occasioning bodily harm,^[1] one harm of grievous bodily harm^[2], one count of possessing a dangerous drug (cannabis) and one summary charge of possessing utensils or pipes that have been used.
2. [2]
   I take into account the pleas of guilty and reduce the penalty I would otherwise have imposed by reason of the pleas. The pleas show cooperation in the administration of justice and have saved the cost of a trial.
3. [3]
   In sentencing the defendant, I have regard to the principles of sentencing mentioned s 9(1) of the Penalties and Sentences Act 1991 (Qld); the relevant matters in subsection 2 and because violence and harm was involved in this case, subsection 2A applies and I primarily regard to the matters mentioned in s 9 subsection 3.
4. [4]
   It is also an aggravating feature of this case that domestic violence was involved.^[3]
5. [5]
   I also specifically take into account s 161B(5) of the Penalties and Sentence Act 1991 (Qld) which requires the court to take into account as an aggravating factor in deciding whether or not to declare the offender to be convicted of a serious violent offence, the age of a child where the offender is convicted on indictment of an offence involving violence against a child under 12. 
6. [6]
   The defendant was born on 27 August 1992. He was 26 years of age at the time of the offending and is now 28 years of age. Exhibit 2 is his criminal history. It contains irrelevant matters.

The Facts

The Background

7. [7]
   The facts of the case are set out in Exhibit 4. The complainant was seven weeks of age at the time of the grievous bodily harm offence. The other offences occurred on dates unknown between his birth and the grievous bodily harm. The defendant is the complainant’s biological father.
8. [8]
   The complainant’s biological mother is GB. The defendant commenced a relationship with GB in 2015 and they married in 2017. The complainant was their first and only child. The defendant and GB lived alone together with the complainant until his arrest.
9. [9]
   The defendant worked as a plasterer during the relevant period. He regularly smoked cannabis before and after work. The relationship between the defendant and GB deteriorated prior to the complainant’s birth and GB described him as being increasingly controlling. After the child was born, the defendant increasingly isolated himself from the support of GB and her parents.
10. [10]
    Tensions grew between the defendant and his in-laws particularly his mother-in-law.
11. [11]
    He rejected sensible advice from his in-laws and GB about how to parent the complainant. He preferred his own ways of parenting which were too heavy handed and he lacked insight into his deficiencies as a parent. As time passed, he became more tired, agitated and assertive. He roughly handled the complainant and was not responsive to GB’s attempts at intervention.
12. [12]
    Particulars are provided of the defendant’s parenting style. He told police he would occasionally have a “screaming match” with the complainant and the complainant “knew that  once I take over Dad don’t take that sort of don’t take shit”. He described a technique he would use to push the complainant’s dummy into his mouth to muffle the screaming. He told police he had not read any books on parenting and he learnt through trial and error. He told police he was the only one who could settle the complainant quickly and was proud of this. He criticised others for holding the complainant in inappropriate ways and told police he learnt how to hold a baby from watching ads on television.
13. [13]
    He and GB took care of the complainant in shifts. GB would care for him until the defendant returned from work at about 3 - 4pm each day. The defendant would care for the complainant whilst GB was sleeping until midnight when she would take over allowing him to get some sleep. As a result of this, the defendant was only getting about four and a half hours sleep a night. He became increasingly irritable, frustrated, and profane and increasingly unwilling to yield to reasonable advice. He also became increasingly rough with the complainant. He forcibly straightened the complainant’s legs when he was on the changing table. This caused the complainant to cry.
14. [14]
    On occasions he would hold the child in the air and spin around. He would occasionally throw the child into a bean bag.
15. [15]
    He wrapped the child in a blanket and rolled him on the floor which caused the child’s face to bump on the floor each time he was rolled. GB also observed the defendant to shake the complainant from side to side and saw him hold the complainant around the chest with both hands and shake him several times. This happened when the defendant was angry and he couldn’t stop the complainant crying. This happened as recently as two days before the infliction of the grievous bodily harm. GB described the defendant would try to comfort the complainant after this.
16. [16]
    GB’s father also witnessed the defendant frustrated and angry and heavily throw the complainant onto the change table causing him to scream. GB was worried about leaving the child with the defendant because she could see he was getting frustrated. She told him to walk away and calm down to which he responded, “babies are resilient” and the child could handle it. She would hover around him, but he would tell her to “piss off and go away”.

Count 3 – grievous bodily harm

17. [17]
    The defendant and GB observed the complainant’s behaviour changed about two weeks before presentation to hospital on 11 August 2019. The child had stopped feeding and drinking as much and he would scream when GB lay him down to be fed. The defendant and GB were home together with the child on Sunday 11 August 2019. The defendant woke up at around 11am and he and GB shared caring for the child until about 3.30pm when she went to bed. The defendant smoked cannabis immediately after he woke up and again around lunchtime.
18. [18]
    GB slept until about 5pm when her father visited to drop off some nappies. The child was sleeping face down on a bean bag in the spare room and the defendant was playing video games in the lounge room. GB went back to sleep and woke up again around 6.30pm. She was at the top of the stairs and heard the defendant say, “it’s ok [child] we’re all good”. The complainant was crying. GB asked if everything was ok and the defendant responded, “of course just go back to bed.” GB went back to sleep.
19. [19]
    The defendant shook the complainant around 7pm causing him to lose consciousness. The shaking involved a violent whiplash motion of the complainant’s head and neck. The defendant went upstairs and told GB that the child had gone limp and was not breathing. GB checked his airways and observed the child was making shallow breaths. The defendant drove them to the Caloundra Hospital. The child stopped breathing in the car whenever he fell asleep so GB held him to try and keep him awake. When they arrived at the hospital the defendant took the child from GB’s arms and rushed inside with him. Treatment occurred immediately before the child was transported to the Sunshine Coast University Hospital. Eventually he was airlifted to the Queensland Children’s Hospital in Brisbane and the parents drove to Brisbane.
20. [20]
    Dr Catherine Skellern, a consultant paediatric specialist at the Queensland Children’s Hospital, stated the complainant had sustained injuries consistent with “Abusive Head Trauma”. The complainant suffered significant retinal haemorrhages, subdural haemorrhages and brain swelling. The swelling to the brain caused a mass effect on the brain and resulted in a shift of brain structures from the right to the left side. This was caused by high energy, angular, acceleration/deacceleration forces to the complainant’s head. The complainant’s temporary cessation of breathing which led to the loss of consciousness was caused by a traumatic injury within his brain stem at the cranio-cervical junction (where the brain joins to the spinal cord).
21. [21]
    Dr Skellern further identified a recent bruise under his chin. She opined that the defendant’s explanation that it had been caused by the complainant lying on his palms as inadequate. The bruise was consistent with having been occasioned as a result of the hyperflexion/extension of the neck when he was shaken. The direct brain injury from the shaking and the secondary effects that followed resulted in a neuropathological cascade causing a significant and permanent disability to the complainant.
22. [22]
    Dr Skellern opined that the injuries could not have been caused by any of the actions described in various versions given by the defendant and the injuries were caused by significant and deliberate movement and force applied to the complainant.

Counts 1 and 2- assault occasioning bodily harm 

23. [23]
    Following the complainant’s presentation to hospital on 11 August 2019, doctors observed the complainant had fractures to each of the second to eighth rib on the rear left side. Dr Skellern opined that these injuries had been sustained approximately three or more weeks prior to the complainant’s presentation. She opined it is likely given the location and type of fractures they were occasioned by a single mechanism. Dr Skellern opined the injuries were inflicted on the complainant through a chest encirclement/compression mechanism (Count 1).
24. [24]
    The force required to cause these injuries was not insignificant. Accidental causes could be excluded. Dr Skellern opined that the injury could not have been caused by any of the actions described by the defendant or observed by other witnesses. She noted that the complainant would have been in immediate pain and be very uncomfortable following the infliction of these injuries. A pain response such as crying would be expected.
25. [25]
    As to Count 2, there was a corner fracture to the complainant’s right femur (thighbone) that was described as being recent and within a week or so of the baby’s presentation to hospital. Dr Skellern opined this injury was derived from pulling, tugging or twisting on the leg with excessive deliberate force. Dr Skellern considered that this injury could not have been caused by any of the actions described by the defendant other than pulling the complainant’s legs straight with excessive force whilst changing him (but a force beyond that described by witnesses). The doctor noted the infliction of this injury would have caused the complainant to be in pain and pain response such as crying would be expected. It is not known if this injury was occasioned in the same episode as the head injuries or in a separate incident prior to the infliction of the head injuries.

Count 4 – possessing dangerous drugs, summary offence of possess utensils

26. [26]
    After police were notified about the child’s injuries, the defendant’s house was declared a crime scene and a search conducted on 12 August 2019. Cannabis seeds, smoking utensils, scales and grinders were located.

Injuries to the complainant

27. [27]
    Exhibit 5 is a report from Dr Erica Baer, consultant paediatrician. She notes that the complainant is now two years of age and lives with GB and his grandparents. The diagnosis when he was admitted to hospital in August 2019 was:

1. 1.Acquired brain injury secondary to head trauma with intracranial haemorrhage consistent with subdural haematoma, subarachnoid haemorrhage and cerebral edema and extensive cortical restricted diffusion.
2. 2.Posterior rib fracture on the left side from ribs 2 to 8.
3. 3.Left distal corner femur fracture.
4. 4.Bilateral retinal haemorrhages.
5. 5.Seizures.
6. 6.Difficulty feeding.

28. [28]
    As a result of his injuries, the following diagnoses have been determined.

1. 1.Microcephaly (small head due to decreased brain growth) and global developmental delays consistent with cerebral palsy. The complainant’s delays currently affect him across all domains including gross motor development, fine motor development and speech and language development. Whilst difficult to provide an exact long-term prognosis with the level of brain injury and developmental assessments to date, he is likely to have severe physical disabilities. At last formal assessment in September 2020, he was functioning at the gross motor function classification system for cerebral palsy level 3 and the doctor expected long term he would be unable to walk independently acknowledging this was difficult to predict accurately. There is also a squint and it is likely there will be some degree of visual impairment, the extent of which will be continued to be assessed. There is no apparent hearing impairment, but he will be assessed for this. It is likely he will have a cognitive impairment.
2. 2.Epilepsy. The complainant continued to have breakthrough seizures during 2021 and has had recent changes to his anticonvulsants to address this. Seizure management is likely to cause issues into the future.
3. 3.Inability to meet nutritional feeds orally. The complainant is currently fed predominantly through a gastronomy tube into his stomach with minimal ability to tolerate oral diet. It is unlikely he will ever become fully oral fed. His swallowing difficulties place him at long term risk of aspiration pneumonia.
4. 4.“Due to the extent of his injuries [the complainant] will require ongoing medical care and support and assistance with all activities of daily living for the rest of his life.”

Statements the defendant made to the police and other witnesses

29. [29]
    Upon arrival of the hospital, the defendant told GB that he was sitting on the lounge room floor swaddling the complainant with a blanket. He alleged the blanket got caught on something as he lifted the complainant from the floor and the complainant kicked off his arm. He was only about 30 centimetres off the ground. The defendant said he caught the complainant but that his head fell back a little. He said he tried to give him some bottle and took him to the change table. He couldn’t wake him so he put him on his shoulder and shook him gently by bouncing him up and down to wake him.
30. [30]
    He provided a similar version to doctors alleging that the child, “flopped around a bit” and stating, “it’s an image I can’t get rid of”. He said the complainant’s head did not hit any surface and he caught him as he fell.
31. [31]
    Doctor Skellern alerted the police and thereafter the defendant participated in three recorded interviews. He told police at the outset he had nothing to hide. The first recorded interview was conducted at 2pm on 12 August 2019 at the hospital. During this interview, the defendant admitted to having the sole care of the complainant when the injury occurred. He said the complainant was crying and screaming when he tried to feed him. He described placing the complainant on the floor and swaddling him. He went to stand but his knee or foot which was partly on the blanket and the complainant also kicked out and subsequently pushed himself off his arm. The complainant unwound from the blanket in a rolling fashion but the defendant was able to catch him before he hit the floor. The defendant alleged the complainant immediately became silent and went limp like a doll. He noticed the child was not breathing and the eyes were closed. He then went upstairs and alerted GB. They then drove to the Caloundra Hospital where they sought medical care.
32. [32]
    On 14 August 2019, detectives from Sunshine Coast Child Abuse Unit spoke to a witness, Ann Noble, in Hervey Bay. She participated in pretext conversation with GB. During the pretext call the defendant was captured talking to another unknown female about baby shaking.
33. [33]
    There was a further pretext call on 15 August 2019 between Ms Noble and the defendant but no admissions were made.
34. [34]
    On 16 August 2019, police attended the Queensland Children’s Hospital and interviewed the defendant. He made admissions that the drugs and drug utensils in the house were his and were for his own personal use. He admitted smoking cannabis two to three times per day. He said between 6pm and 7pm on Sunday 11 August 2019 he had the sole care and custody of the complainant. He described the complainant falling from him swaddling and becoming unresponsive. He looked at the complainant and panicked. He hit the complainant on his back and bounced and shook him around to try and wake him.
35. [35]
    He said he had no knowledge of the rib fractures or femur fracture. He became too distraught to continue. The defendant was arrested at 4pm and transported to the Brisbane Watchhouse, charged and refused bail.
36. [36]
    On 21 August 2019, police received information from the watchhouse that the defendant wished to participate in a further interview. They conducted the interview and the defendant admitted that versions he’d previously provided to the police and medical staff were untrue. He adopted the father-in-law’s statement alleging his general rough handling of the complainant, admitted to throwing him up into the air and catching him, forcibly feeding him, picking him up from only his wrists, holding his legs down forcibly, picking him up by only his bodysuit and throwing him onto the change table. He received legal advice during the interview and was advised not to provide a further version. He eventually told police “[he] could tell police exactly what happened that night and then it would come back to bite him on the arse later down the track in court.” He said he admitted to GB that he had shaken the child. He admitted he was responsible for causing the child’s brain injury and he would have to live with this for the rest of his life. He resisted the allegation that he shook him as alleged.
37. [37]
    In short, the defendant lied to police and other witnesses. He offered a number of explanations as to how the child came to have his injuries including a number of ways that the child might have hurt himself:

    1. (a)
       He told police the child had developed a habit for shaking his head from side to side whenever he was refusing a bottle or nipple;
    2. (b)
       He told police the child would occasionally swing his head around whilst held resulting in him hitting his head on the defendant’s collarbone which he described as particularly strong.
38. [38]
    After being remanded in custody, the defendant wrote a number of letters and notes which was seized from his cell. The letters and notes generally acknowledged he had caused the child’s injuries but repeated his claim the injuries were an accident. Some of the letters sought to blame GB for the child’s condition alleging she smoked cigarettes, cannabis or abused opiates during pregnancy. One letter suggested the child was born with “shaken baby syndrome.” The defendant discussed his offending in several recorded phone calls from prison. He told his mother the only person who was suffering was himself. He said he could not go back to GB because he would make her feel that bad she’d kill herself because he had that much information on her. He discussed ways he could blame his wife. He suggested the complainant’s injuries may have been caused by the way she bounced him and the damage was already done before his actions. He told his mother during one phone call he was worried police might obtain recordings from the baby monitor.

Victim Impact Material

39. [39]
    GB has provided a victim impact statement, Exhibit 6. JB, her mother, has provided a victim impact statement, Exhibit 7, and SB, her father, Exhibit 8. The victim impact statements show that the offences here have had a significant effect not only upon the child but the family. The child has had significant difficulties and requires long term care. The child is unable to crawl, walk or communicate.
40. [40]
    The mother says the child has to be strapped into a chair and carried around the home. There are continuing significant seizures. He has a fear of water and night terrors.
41. [41]
    His care is very complex and there needs to be at least two people looking after him, 

Crown submissions

42. [42]
    The Crown has prepared some written submissions.^[4]
43. [43]
    The Crown points out that the defendant was remanded in custody for 89 days between 16 August 2019 and 12 November 2019 at which time he was granted bail. It is common ground between the parties the defendant has complied with his bail conditions. These conditions have included a residential condition, a reporting condition, a drug testing condition and a no contact with witnesses’ condition.
44. [44]
    The Crown concedes it is an early plea with the matter being listed for sentence shortly after presentation of the indictment. The Crown submits there is a strong Crown case that the defendant was responsible for causing the grievous bodily harm injuries. The case concerning the rib and leg fractures was more unclear.
45. [45]
    The Crown points out the injuries and impact on the complainant, Doctor Skellern stated that when QAS arrived at the Caloundra Hospital 17 minutes after the complainant had arrived, the child was documented as having a GCS of 15. He was breathing with respiratory distress but became apnoeic en route to the Sunshine Coast University Hospital. He was incubated and ventilated in the Emergency Department with sedation and paralysis before being transferred to the Queensland Children’s Hospital. Despite this, he had persistent seizures which required management with anti-convulsant medication.
46. [46]
    Eight days later he was discharged from the intensive care unit to a ward where he received nasogastric feeds. He was on anti-convulsant medication and had no visual awareness. His movements were noted to be abnormal due to severe neurological insult.
47. [47]
    He was discharged to outpatient care in September 2019 and will require ongoing medical care and support and assistance with all activities of daily living for the rest of his life. He has cerebral palsy and is not expected to be able to walk independently. He was a squint and is likely to have visual impairment. His speech, language and global delays imply he is likely to have a cognitive impairment. He will continue to have seizures and management of these will cause issues into the future. He is fed predominantly through a tube that goes directly into his stomach.
48. [48]
    The Crown referred to statements of principle contained in R v O'Sullivan; Ex parte Attorney-General.^[5]
49. [49]
    The Crown points out that the maximum sentence for grievous bodily harm is 14 years imprisonment and the harm suffered by the victim of violence is an important factor in sentencing under s 9(3)(d) of the Penalties and Sentences Act. It is also an aggravating feature here that domestic violence was involved.^[6]
50. [50]
    Several decisions were relied on by the parties namely as follows:

    1. (a)
       R v BCF^[7];
    2. (b)
       R v HBA^[8];
    3. (c)
       R v Collins, Ex-parte Attorney-General^[9];
    4. (d)
       R v FJ, Ex-parte Attorney-General^[10];
    5. (e)
       R v Riseley, Ex-parte Attorney-General^[11];
    6. (f)
       R v SAV, Ex-parte Attorney-General^[12];
    7. (g)
       R v Chard, Ex-parte Attorney-General^[13];
    8. (h)
       R v K^[14];
    9. (i)
       R v W^[15];
    10. (j)
        R v Hall, Ex-parte Attorney-General^[16];
    11. (k)
        R v J^[17];
    12. (l)
        R v Smith^[18];
    13. (m)
        R v Welsh^[19].
51. [51]
    Of course, each case depends on its own facts and it is for the sentencing Judge to do the best that he or she can on the given facts of the case. As was said in R v Dwyer,^[20] one must be cautious in considering the comparable cases have the one correct sentence.
52. [52]
    I also note that these cases were decided before two important amendments to s 9 of the Penalties and Sentences Act. This limits the usefulness of the cases for the purpose of comparison.^[21]
53. [53]
    Section 9(10A) was inserted into the Act on 5 May 2016.^[22] This provides that the fact that an offence is a domestic violence offence is an aggravating factor unless the Court considers it is not reasonable because of the exceptional circumstances of the case. The defence did not contend there were exceptional circumstances here.
54. [54]
    Additionally, until 2016 s 9(2)(a) of the Penalties and Sentences Act provided that a sentence of imprisonment was one of last resort and one which allowed the offender to remain in the community was preferable. Section 9(2A) was introduced on 27 June 2016. This displaced the applicability of s 9(2)(a) when it came to offences of violence or where harm was caused to another person.^[23]   
55. [55]
    Also, with respect to the cases decided before 2010, I note that on 5 November 2010 the Penalties and Sentences (Sentencing Advisory Council) Amendment Act^[24] commenced which introduced s 161B(5).^[25]
56. [56]
    Ultimately the Crown submits that the defendant is to be sentenced for a serious assault on his defenceless infant son which resulted in catastrophic permanent injuries. There was a significant and deliberate movement and force applied to the complainant. The rib fractures were inflicted by deliberate excessive and significant force. The femur fracture was caused by pulling or tugging on the leg with excessive force. The child was only seven weeks of age at the time. The offending involved repetitive acts of violence which calls for condign punishment. It is conceded though the defendant is not being charged with any offence of intentionally causing the injuries. It is also accepted that the defendant has ultimately accepted responsibility and pleaded guilty to the offence. It was originally submitted that a head sentence of no less than seven years imprisonment should be imposed with a parole eligibility date after one third. A serious violent offence declaration (“SVO”) on count 3 was not pressed for at that time.

Defence submissions

57. [57]
    The defence provided written submissions (Exhibit 9). The defendant is the eldest of three siblings and was raised by his mother after his biological father left home when he was aged four. His mother was 19 years of age when he was born. He was raised in Charters Towers. He performed poorly at school and his grades in primary school were very low average. He was bullied at primary school. During high school he struggled academically. He left school at the beginning of year 11 as he had no prospect of success there. Around this time, his mother was diagnosed with cancer which caused distress.
58. [58]
    After leaving school he commenced fulltime work in a café where he worked for a year. After working in a bakery, he worked as a builder’s labourer, a tyre fitter and at the time of the offences as a plasterer. For a time, he worked in his own plastering business in partnership but more recently until now has been an employee. The defendant has a modest but sound employment record and he has not reoffended in any way in the two years since offending. I also accept the submission he is still relatively young.
59. [59]
    As to what has been happening since he was granted bail, I was informed the defendant resides with his mother in Charters Towers and has travelled to court for the purpose of the sentence. I was informed that he has continued to work as a plasterer and has complied with the bail conditions which I mentioned previously.
60. [60]
    Regarding the offences, the defence points out that the defendant routinely was only having three to four hours of sleep per night at the relevant time. He was getting up to go to work from 4.30am and returning home in the middle of the afternoon to look after the child which he did until midnight when GB took over.
61. [61]
    In his third interview with the police on 21 August 2019 the interviewing police officer said she had spoken to the defendant’s employer who had advised her that on some occasions when the defendant went to work he was so tired he could not operate and had to return home. 
62. [62]
    The defence submits that the defendant became overwrought by the responsibility of parenting, having become isolated and increasingly irritable.  In those circumstances he lacked insight into the prospect of the child suffering harm from what he did.  It is submitted his offences were not motivated by malice for he loved the child and never stopped loving him, but more rather he acted in frustration or anger at his incapacity to quell the child’s crying and on impulse had caused the injuries.  He conceded to the police that the child’s crying made him feel “hopeless”.  GB also, in her police statement, said “I do not believe Michael has intentionally harmed our baby but I don’t think he knows his own strength” and further “I do not think Michael has intentionally caused these injuries but I believe he has handled [the complaint] too roughly.”
63. [63]
    The defence accepts the offending is grievous and unforgivable but is submitted there was no use of weapon here.  This is a case where it is said:

“[He] was tired and frustrated, he increasingly lost his composure, expressed more and more general irritability and then on impulse reacted by grabbing [the complainant] too hard, handling him too roughly and shaking him.”^[26]

64. [64]
    The defence points out that there was no motive to do the child serious harm; the defendant had entirely misplaced confidence in his ability to parent the child and he was a very large man of 130kg.  It is submitted he genuinely underestimated his capacity to do significant harm to the child. 
65. [65]
    The defence submits it is important to bear in mind that this was not a crime of calculation but a spur of the moment crime in an explosion of anger and frustration.^[27]  It is conceded the significance of the injuries is a relevant consideration.^[28] 
66. [66]
    The defence refers to a number of authorities which it submits establish a range of four to six years imprisonment for offences of grievous bodily harm to infants in a domestic setting.^[29] 
67. [67]
    The defence concedes though the landscape has changed somewhat referring to R v O'Sullivan; Ex-parte Attorney-General.^[30] It is submitted bearing in mind the statutory amendments that the range has increased from somewhere between four to six years to five to seven and a half years.^[31]  It is submitted the defendant is not at the top of this range given his lack of malice, early plea of guilty, remorse and otherwise good character. 
68. [68]
    It is submitted that a head sentence of six years’ imprisonment with eligibility after two years would be appropriate.
69. [69]
    In oral submissions the defence stressed compliance with the bail conditions and made submissions as to what the defendant had done in the last two years.  It was submitted that the reason for his smoking cannabis was due to leg/arm injuries through his employment.  The defence conceded the range had increased from that referred to in SAV by reason of the amendments to the Penalties and Sentences Act.  The defendant conceded he caused the injuries but still loves his son.  It is true he lied in the interviews with police but he was devastated and the defence pointed out he was sobbing at points during the interviews and the second interview had to be terminated because of his distress.  The defence stressed that the injuries were caused through his frustration and/or anger. 
70. [70]
    The defence pointed out it was an early plea and there was co-operation with the police both of which showed remorse.  The defence then distinguished some of the cases relied on by the Crown.  In the letters he wrote from the jail he expressed the view he was very sorry for the harm he had caused.  His remorse shows a reduced risk of reoffending and minimised the need for deterrence.  The defence heavily relied upon the fact there had been no reoffending for two years and there was limited criminal history. 
71. [71]
    It stressed that he had not been charged with an offence involving specific intent and the fact is the defendant did not know his own strength.  The COVID-19 pandemic would make his time in custody more difficult.  He would be isolated for 14 days bearing in mind his family is in Charters Towers.  Also, he might not get an immediate transfer from Brisbane and he would have difficulties gaining access to courses, the exercise yard and to visits.

Further Hearing

72. [72]
    After the matter was adjourned I advised the parties through my Associate that I required further submissions on whether an SVO declaration should be imposed in this case or whether the parole date should be altered or whether the parole date should be set at one third of the sentence.
73. [73]
    The court resumed on 6 August 2021 to hear further submissions.

Further evidence

74. [74]
    The Crown tendered, as Exhibit 10, an “Assessment and Outcome” report from the Department of Child Safety. This report indicated that another child A had been born to the defendant and a new partner on 21 May 2021. This report noted that the new partner G and the defendant had been in a relationship for about 18 months. G has a brain injury from birth which affects her memory and function. She functions at a 12 to 13 year old level. The report noted that the defendant had produced several excuses as to how the injury to the complainant occurred. It is noted “he accepts he was the only one with the child at the time, however, his explanations do not explain the injury or show any sign of remorse for his alleged actions. He has stated that the child dropped from a blanket after wiggling out, the child was unconscious, and he shook it to wake up and finally that the child was already in an unconscious state prior to returning to his home”. The report notes that the defendant alleged that GB had numerous mental health concerns none of which were accurate. The report notes that there is reference to his controlling behaviour in that relationship and to his reference to his former partner as being suicidal and he needed to care for her and the child. The report noted that concerningly these behaviours have been demonstrated in the defendant’s current relationship with G. It is alleged that he tells G she doesn’t need painkillers and he would correct and interject when she tries to feed the new child. He tells her that the child has just eaten and doesn’t need a feed for another four hours despite G trying to demand to feed. The defendant needs to be convinced to allow G to speak with the Department without him being present. There is hearsay reference to what G has said, what G’s mother has said and what the defendant’s mother has said.
75. [75]
    It was noted “contact will remain supervised as the risk of harm to [the new child] is considered too great at this point in time. It was further noted “in assessing all the information available during the investigation and assessment of the worries it has been found that [the new child] is at risk of significant harm if she remained in the care of parents, the defendant and G”.
76. [76]
    The intervention plan was a child protection order. It was further noted that the defendant was charged with shaking injuries on the complainant in 2019. There were concerns about the defendant demonstrating the same behaviours with G and “the most appropriate intervention is a child protection order, to ensure the ongoing safety of [the new child].”
77. [77]
    The defence submitted that no weight should be accorded to the contents of Exhibit 10 as it was unsworn and the defendant denied particular aspects of matters alleged in the document.
78. [78]
    The Crown submitted that the only reason for the tender of the document was to show a lack of insight/lack of remorse of the part of the defendant. It submitted that this was clearly evidenced anyway from the schedule of facts which were agreed between the parties.
79. [79]
    As no sworn evidence was called, in all of the circumstances, I only rely on Exhibit 10 insofar as it corroborates a lack of insight/remorse as referred to in the statement of facts. I also rely on it to show that the defendant does have another young child. I do not rely on the document otherwise.
80. [80]
    Exhibit 11 was also tendered by the prosecution. When the matter first came before me the defence denied the defendant had undertaken any parenting courses. This proved to be incorrect.
81. [81]
    Exhibit 11 is a report called “Walking with Dads Closure Report”. This shows the defendant was referred to the “WWD Active Intervention” on 11 September 2019. He was referred from the investigation and assessment team as an intervention with parental agreement case with WWD in September 2019 following an IA outcome of that substantiated physical and emotional harm and risk of physical and emotional harm and neglect listing  the defendant as the person responsible.

“The referral was made to support the defendant’s understanding of the impacts his behaviours had caused the child directly and indirectly … It was agreed that WWD would work with the defendant under active intervention and that work would focus on supporting the defendant to engage in a longer term Men’s Behaviour Change Program … themes of the defendant’s pattern of behaviour included verbal berating and put downs, specifically using GB’s mental health against her, and telling her she was not a good mother, isolating GB from her family and friends and used coercion in relation to sex. The defendant’s use of marijuana factored into his pattern of behaviour as this would escalate his abusive behaviours if he did not have access to it.”

82. [82]
    It was noted:

“Michael agreed to WWD support however this appeared primarily to be due to Michael’s desire to prove that allegations against him were false. He attended six face to face sessions (first in person whilst incarcerated and five by telephone due to being bailed) in late 2019 and early 2020. The sessions focused on attempting to assist him to understand his behaviours to GB were domestic violence, educating around the needs of children and safe parenting and to support him to engage in a longer-term Men’s Behaviour Change Program. In summary it was said “during the period of WWD intervention Michael continued to present with no understanding of the child protection concerns, took no responsibility for his behaviours, showed no remorse or shame, had no understanding of the impacts of his behaviours on the complainant or others, showed little capacity to self-reflect and sought to blame others for his behaviours. Given that Michael continues to rebut all child protection concerns and is not holding himself accountable for his choices of behaviour as a parent, it is reasonable to assume there has been no shift towards Michael making behaviour changes as a parent in relation to the care of a child.”

83. [83]
    The defence accepted the defendant did not properly engage with this program.
84. [84]
    Again, I rather gathered from the defence some of which was stated in the report was disputed. However, insofar as the report is consistent with his not accepting responsibility for injuring the child and attempting to blame others, I rely on the report insofar as it corroborates statements already made in the agreed statement of facts. This does tend to show a lack of insight/remorse into what occurred here.

Further Crown submissions

85. [85]
    The Crown in further written submissions^[32] points out that as a result of the submissions made on 2 August 2021 it sought this additional material. It submits the material is relevant to aspects of remorse, rehabilitation as well as community protection.^[33]
86. [86]
    The Crown noted it had previously made a submission it was not seeking an SVO declaration. The Crown submits that the decision in R v O'Sullivan has changed the landscape with respect to these matters. The Crown refers to R v Free; Ex parte Attorney-General.^[34] The Crown submits that in this case the defendant has committed separate and serious acts of violence towards the complainant. The force used was considerable and deliberate.
87. [87]
    On the other hand, he is not charged with an intention to cause GBH at the time he inflicted the injuries and did seek immediate medical attention at the time. He has however shown a lack of insight into the offending conduct and there is an absence of true remorse revealed both by his comments to police in the various interviews and in his dealings with DOCS.
88. [88]
    The Crown relies on R v Ruiz; Ex parte Attorney-General^[35] where the President noted that an offender who is not remorseful presents a real risk of doing the same things again.
89. [89]
    It is submitted that whilst this is an offence of grievous bodily harm not manslaughter, the considerations in imposing an SVO declaration are similar in considering the offence of manslaughter as in the offence of grievous bodily harm.
90. [90]
    The Crown refers to the case of R v Smith^[36] in this regard. It was held in that case that the making of an SVO declaration was excessive, but it was appropriate to set a parole eligibility date somewhat later than the halfway mark.
91. [91]
    The Crown also relies on a single Judge decision of R v Stokes and Moore.^[37] The Crown also relies on R v Randall.^[38]
92. [92]
    Ultimately the Crown in its written submissions suggests there are features in this case which warrant the considering of the making of an SVO declaration when one has regard to the features of the offending including the separate offences of assault occasioning bodily harm, together with the risk the defendant poses to the community demonstrated by his lack of remorse, insight and engagement with the parenting course.
93. [93]
    Also, the Court has unfettered discretion in relation to fixing the parole eligibility date if it is not satisfied that the making of an SVO declaration is warranted in this case.
94. [94]
    These written submissions were repeated in oral submissions made by the prosecutor. Ultimately, when distilled, the features warranting the SVO declaration were:

1. 1.The young age of the child.
2. 2.The additional feature of the rib fractures and leg fracture.
3. 3.The catastrophic GBH injury.
4. 4.The deliberate infliction of force on the child.
5. 5.Community protection and protection to others, the lack of remorse and obfuscation of the defendant to police, hospital staff and others.

95. [95]
    As against the above matters:

1. 1.This was not an offence of intention.
2. 2.The offence occurred through fatigue and frustration.
3. 3.There has been a plea of guilty.
4. 4.There are no offences of relevance in the defendant’s history.

Defence further submissions

96. [96]
    The defence prepared further written submissions which I marked as Exhibit 14. It is noted that consideration on whether to impose an SVO declaration is part of the integrated process leading to the “instinctively synthesised” sentence.^[39]
97. [97]
    It is submitted that an SVO declaration ought be reserved for classes of a different case to the present defendant particularly when he did not act with malice and did not stop loving his son.^[40]
98. [98]
    It was conceded that R v Randall^[41] is authority for the proposition that there is a discretion in the Court as to the length of imprisonment and fixing of a parole date. The discretion is unfettered and there is no mathematical approach.^[42]
99. [99]
    The defence also refers to R v McDougall and Collas^[43] and notes that in R v Free, ex-parte Attorney-General^[44] all of the relevant circumstances must be considered in deciding whether an SVO declaration should be imposed and the Court should take into account all relevant considerations which may ordinarily be taken into account in the exercise of the sentencing discretion.
100. [100]
     The defence also relies on R v Lawler^[45] and R v Smith.^[46]
101. [101]
     Ultimately, whilst the consequences of the offending in this case are extremely serious and the defendant’s early denials of the offending and resistance to the course offered to him might inform the reason to consider an SVO declaration, there are a number of significant reasons why such an order should not be made or even to postpone the parole from the one third mark. They are as follows:

1. 1.There is no criminal history and certainly no previous offences of violence.
2. 2.There was a plea of guilty at committal for the GBH charge and early pleas to the assault charges.
3. 3.The defendant accepted he caused the injuries in the third interview.
4. 4.There was evidence of remorse in the interviews and at the hospital.
5. 5.He didn’t try and hide the injuries and in fact took the child to the hospital.
6. 6.Letters he wrote in custody showed remorse which leads one to the conclusion there is less risk of reoffending here.
7. 7.This is not an offence of intention and malice was not involved, it was a case of frustration or anger.
8. 8.He had a good employment record.
9. 9.He had been out of trouble for two years.
10. 10.He was relatively young.

102. [102]
     The defence also submits that SVO declarations are made in cases of a different class to the instant one. This is a case where he was insightless, obtuse and rejected good advice but did not stop loving his son. It is submitted that there is no risk from him to the community at large as there is no propensity for violence. Rather, his risk is to infants in his care. However, the Department of Child Safety is well aware of his offending and its involvement is a significant protective factor. Indeed, there is a protection order proposed with respect to his baby daughter.^[47] The Court must presume that the executive namely the Department will act according to its statutory powers to protect infants.
103. [103]
     It is also submitted that the greatest amount of protection to the community will be by an order which provides the defendant the greatest amount of guidance and supervision. This is by the fixing of a parole order. Conversely this would not be the case if he was ordered to serve 80 percent of the head sentence. Once the defendant is sentenced and in custody, he will have a significant capacity to engage in courses and if he fails to do so this will significantly impede his prospects of parole.^[48]
104. [104]
     It is agreed that the sentence in this case must express deterrence denunciation, but this can be achieved through the head sentence rather than by SVO declaration.^[49]
105. [105]
     As to his failure to engage in the course it is submitted the defendant is unsophisticated and was put in a position where the matter was still before the courts and he could not therefore make admissions to the offending. The defence does agree that the defendant’s failure to reveal the course to them is a matter of concern but is of limited significance to the imposition of an SVO declaration. 

Disposition

106. [106]
     In my opinion this is a very serious case.  The fact is, as the Crown submits, this was a defenceless seven-week-old infant and very serious injury was caused to the infant by the defendant.  There most likely will be lifelong lasting injuries and have not only affected the child but other members of the family who will probably have to care for the child for the rest of his life and perhaps theirs.
107. [107]
     Additionally, this was not just one occasion of injury.  There are the three counts to be considered, although Count 3 of course is the most serious.
108. [108]
     The provisions of s 161B(5) of the Penalties and Sentences Act are directly applicable here. 
109. [109]
     The principles expressed in R v O'Sullivan Ex-parte Attorney General^[50] are also applicable here.  The Court at [68] noted that there must be reasonable consistency in sentencing but previous sentences are not precedents.  Further, the Court noted that in 2016 s 9(10A) of the Penalties and Sentences Act was inserted which required the Court to treat domestic violence as an aggravating feature.^[51] 
110. [110]
     I further note that in R v Townshend^[52] the importance of the amendments made to s 9(2) of the Penalties and Sentences Act in 2016 was discussed.
111. [111]
     In R v O'Sullivan Ex-parte Attorney General^[53] the Queensland Court of Appeal noted that the amendments since 1997 constitute legislative instruction to give greater weight than previously given to the aggravating effect upon a sentence that an offence was one that involved infliction of violence on a child and the offender committed the offence in the home environment.
112. [112]
     I first turn to the issue of whether an SVO declaration should be made. I note that the Crown originally did not seek an SVO declaration but that is not binding on me.^[54] 
113. [113]
     R v Free; ex parte Attorney-General (Qld)^[55] is authority for the following propositions:

• A critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80% of the head sentence before being able to apply for parole.
• The considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in other aspects of sentencing.
• It will usually be necessary that the declarations be reserved for the more serious offences. Without this feature it may be difficult to justify the declaration.
• Where a declaration is made then the balancing exercise may require the sentence to be imposed at the lower end of the range.
• Bringing forward a parole date is concerned with the offender’s prospects of rehabilitation as well as co-operation with the administration of justice.
• To delay a parole date is usually concerned with circumstances which aggravate the offence which suggests the protection of the public or adequate punishment.
• All relevant matters mentioned in s 9 of the Penalties and Sentences Act are to be considered.^[56]       
• As part of the integrated sentencing process consideration must be given to whether the circumstances of the offending warrant the conclusion that the protection of the public or adequate punishment requires the offender to serve longer in custody than otherwise would be required.   

114. [114]
     Also, in Free^[57] the Court acknowledged that a sentence could have a strong denunciatory element to reflect the community’s condemnation of the conduct by the imposition of a higher head sentence rather than by making the declaration. Also, the court acknowledged that there is an unfettered discretion as to the fixing of the parole date.^[58]       
115. [115]
     In this particular case I must primarily have regard to s 9(3) of the Penalties and Sentences Act.^[59]  In this particular case the personal circumstances of the victim are that he was only a seven-week-old child^[60] and thus was extremely vulnerable.  The defendant was in a position of trust.  The circumstances of the offence included the injuries to the child were severe.^[61]  The nature and extent of the violence used was significant.^[62] Also it was not a one-off act of violence towards the child. The two assault charges are also serious.
116. [116]
     As the defendant’s remorse I am sure he is sorry for what he has done, but as against that he did provide misleading information early on and at times has shown limited insight and remorse. This is a cause for some concern here. As the defence acknowledges, it is also of concern he failed to disclose the fact he underwent the course in 2019. 
117. [117]
     I specifically however do take into account these are not offences requiring proof of intention. I also take into account the fact that the injuries were caused as a result of the frustration caused by fatigue.   
118. [118]
     I also take into account the pleas of guilty, the compliance with bail and the defendant’s antecedents (no previous convictions for offences of violence).
119. [119]
     It is very much a borderline case, however taking into account the mitigating factors in  the end I am persuaded in the exercise of my discretion not to impose an SVO declaration but I do not intend to fix an early parole eligibility date.
120. [120]
     The serious nature of the offending with the significant injuries on a vulnerable child means that condign punishment should be imposed here.
121. [121]
     I consider that a global sentence of seven years imprisonment with parole eligibility after the statutory period is the appropriate sentence for this offending.
122. [122]
     As in Free,^[63] I consider such a sentence, takes into account the mitigating factors but also given the serious nature of the offending sends a strong message of denunciation and deterrence. Young infants should be protected by their parents and should not be the objects of violence. 

Conclusion

123. [123]
     In conclusion I make the following orders:

1. 1.A conviction is recorded on each count.
2. 2.On Count 1, I impose two years imprisonment.
3. 3.On Count 2, I impose two years imprisonment.
4. 4.On Count 3, I impose seven years imprisonment.
5. 5.On Count 4, I impose one months’ imprisonment.
6. 6.On the summary charge, I impose one months’ imprisonment.
7. 7.The terms of imprisonment are to be served concurrently with each other.
8. 8.Pursuant to s 159A of the Penalties and Sentences Act I declare the defendant has served 100 days in presentence custody. I state the dates are between 16 August 2019 and 12 November 2019 and 2 August 2021 and 13 August 2021 and I declare this to be time already served under the sentence.