Sunday, October 19, 2014

Dad's sentence for assaulting 6-week-old daughter is doubled on appeal; inflicted at least 15 fractures and a brain injury (Sydney, Australia)

So now UNNAMED DAD will serve at least 4 years instead of 2....

Father's sentence for shaking his baby doubled on appeal

By STEPHANIE GARDINER Oct. 19, 2014, 5:47 p.m.

A young Sydney father who was jailed after he "lost control" and violently shook his six-week-old daughter in frustration has had his sentence doubled, after an appeal court found the baby's crying did not reduce his moral culpability.

The man, who cannot be identified for legal reasons, was sentenced to at least two years' jail in December for assaulting his daughter twice, causing at least 15 fractures and a brain injury.

During his trial in the NSW District Court, a jury heard he twisted the baby's limbs and violently shook her while his wife was out of their Sydney house on two afternoons in July 2011.

According to court documents, during the first assault, the father "took out his anger over his financial woes and his frustrations generally on his six-week-old baby".

After initially denying he was responsible for the baby's injuries, the father, then aged 20, told police that, during the second assault, he was feeling frustrated and angry about money and was missing his extended family, who lived far away.

The father said: " I just ... I lost control of myself and just shook my baby instead."

The District Court heard that at the time of the assaults, the father weighed 170 kilograms and the baby weighed 4.6 kilograms.

The jury found the man guilty of two counts of causing grievous bodily harm with intent and he was sentenced to a maximum four-year term.

In sentencing the father, Judge Martin Blackmore said: "Unlike their first child, [the baby] was apparently quite a noisy and somewhat difficult baby.

"Such behaviour in a child is challenging even for mature and experienced parents, which certainly the offender was not. It has to be recognised that a parent is capable of lashing out in frustration when dealing with a crying baby."

The Crown appealed on several grounds, including that there was insufficient evidence for Judge Blackmore to find that the baby was crying at the time of the assaults, a conclusion that reduced the father's moral culpability.

The trial had heard relatives describe the infant as a "screamer", "annoying", and as having "a good set of lungs on her", but there was no evidence about the timing of her behaviour, the Court of Criminal Appeal found.

In the judgment handed down on Friday, Justice Peter Garling said: "The Crown, in my view, is correct to submit that the sentencing judge regarded this finding as lessening the respondent's moral culpability for the offence that occurred.

"His Honour's specific reference to the capacity of a parent to lash out in frustration 'when dealing with a crying baby', is a direct finding of fact that this is what occurred in these circumstances.

"This was an erroneous finding. The evidence did not permit that finding to be made."

Justice Garling also agreed with the Crown's argument that the judge erred in considering the objective seriousness of the crime, and also in the structure and length of his sentence.

Justice Lucy McCallum and Justice Clifton Hoeben agreed with his ruling.

The father was resentenced to at least four years' jail, with a maximum term of seven years. He will be eligible for parole in September 2017. The court heard that the baby's injuries did not lead to any permanent disability.