R v Hemsworth [2021] NSWDC 638

R v Hemsworth [2021] NSWDC 638

The offender's violent infliction of catastrophic injuries on a very young vulnerable child in his care, his callous failure for approximately two days to obtain medical attention to avoid detection, and his creation and maintenance of a false alibi required a very substantial aggregate sentence. Count 1 was in the high range of objective seriousness, count 3 was well above midrange but a little below the high end, and count 4 was towards the bottom end of the midrange. The offender had no remorse, accepted no responsibility, and had only limited mitigating subjective features, although he had reasonable prospects of rehabilitation and received a 15% discount on count 4 for the guilty...

Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Criminal Sentence / Sentencing After Jury Trial on Counts 1 and 3 and Guilty Plea to Count 4
Outcome
Aggregate sentence imposed of 18 years and 6 months' imprisonment with a non-parole period of 13 years and 10 months.
Legal Topics
['cause Grievous Bodily Harm With Intent' 'failure to Provide Necessities of Life' 'perverting the Course of Justice' 'parental Responsibility' 'objective Seriousness' 'aggregate Sentence']
['criminal Law' 'sentencing'] ['cause Grievous Bodily Harm With Intent' 'failure to Provide Necessities of Life' 'perverting the Course of Justice' 'parental Responsibility' 'objective Seriousness' 'aggregate Sentence']

Case Brief

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Procedural Posture

Criminal Sentence / Sentencing After Jury Trial on Counts 1 and 3 and Guilty Plea to Count 4

Legal Issues

  1. 1 ['What facts should be found for sentence consistently with the jury verdicts and to the criminal standard where adverse to the offender.' 'The objective seriousness of the offence of causing grievous bodily harm with intent to cause grievous bodily harm to a very young child.' 'The objective seriousness of the offence of intentionally failing, without reasonable excuse, to provide the necessities of life, namely medical care and attention, where the failure caused a danger of death.' 'The objective seriousness of creating and maintaining a false alibi with intent to pervert the course of justice.' "Whether the offender's subjective circumstances, mental health, upbringing, plea to count 4, prospects of rehabilitation, time in custody, protection concerns and COVID-19 custody conditions affected sentence." 'Whether special circumstances should be found when fixing the non-parole period.']

Ratio Decidendi

The offender's violent infliction of catastrophic injuries on a very young vulnerable child in his care, his callous failure for approximately two days to obtain medical attention to avoid detection, and his creation and maintenance of a false alibi required a very substantial aggregate sentence. Count 1 was in the high range of objective seriousness, count 3 was well above midrange but a little below the high end, and count 4 was towards the bottom end of the midrange. The offender had no remorse, accepted no responsibility, and had only limited mitigating subjective features, although he had reasonable prospects of rehabilitation and received a 15% discount on count 4 for the guilty...

Court Disposition

Aggregate sentence imposed of 18 years and 6 months' imprisonment with a non-parole period of 13 years and 10 months.

Orders

  • ['The offender is convicted of counts 1, 3, and 4 of which he was found guilty by a jury after trial.' "Impose an aggregate sentence of 18 years and 6 months' imprisonment with a non-parole period of 13 years and 10 months. The sentence commences on 21 May 2019 and expires on 20 November 2037. The non-parole period...