Court imposes suspended prison sentence for guilty plea assault on infant under Children Act 2001.

[2013] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA GC)

PROSECUTION

-V-

PD

DEFENDANT

CHILDREN ACT, 2001— SECTION 246

10 January 2013

1. This is a prosecution brought by Garda GC against the defendant for an offence contrary to section 246 of the Children Act, 2001.

The DPP has consented for this case to be dealt with summarily before this court. The solicitor for the Defendant has entered a plea

of guilty for his client in respect of the offence: namely to assaulting a four-month-old child contrary to section 246 of the Children

Act 2001 which provides that:

‘[i]t shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat,

neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected,

abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child’s health or seriously

to affect his or her wellbeing.’

2. At the time of the offence, the defendant had charge, custody, and care of the child in question and was therefore responsible for

the care, protection, and welfare of the child on the day and at the time of the occurrence of the offence. The security for the

person is among the first conditions of civilised life. The law, therefore, protects us, not only against actual hurt and violence, but

mandates those in charge of children without equivocation to exercise such powers as to ensure that those in their care are not

subject to such physical or emotional transgressions.

3. As a result of the offence, the injuries sustained by the child will have long-term affects upon their development, as articulated by

the Consultant Rheumatologist. The child’s injuries included skull fractures, ischemic brain injury, and retinal haemorrhages. The

injuries are quite significant having regard that they were inflicted upon a four month old child. There can be no excuse or justification

in respect of such injuries and in the absence of explanation assault, ill-treatment, and cruelty, like every other vice, requires no

motive outside of itself; it only requires opportunity.

4. Section 246 of the Children Act, 2001 concerns cruelty to children. Assault is not defined by the Act but it must be assumed that

assault must have as its meaning what ordinary persons of reasonable intelligence think it to mean. Therefore, the definition must

include a slap, which would rank as an offence on the minor scale of assault, right up to injuries such as skull-fractures, which would

rank as an offence on the highest level of the scale of assault.

5. In the instant case which included injuries of skull fractures, brain injury, and haemorrhages of the eyes, it is correct to say that

they are of the grievous kind contemplated within the meaning of section 246. This is so because section 246 bundles together in a

generic context conduct of assault, ill-treatment, neglect, and abandonment and clearly to appreciate the true extent of such

offences such as assault as understood by the section and having regard to the defencelessness of the infant who sustained the

injuries the gravity of the offence must be at the highest level envisaged by the legislature.

6. The court has been informed that the defendant has previous convictions and of significance is a conviction for sexual assault and

a previous conviction for physical assault. Moreover, the court has been informed that the defendant has, in the past, shown an

inability or unacceptable level of impulse control. Furthermore, it has been noted that, again in the past, the defendant has displayed

little remorse or victim empathy for his behaviour.

7. A factor which the court also has to take into account in the instant case is that, on presenting the child to the hospital, he

misinformed medical staff in relation to the events concerning the child’s injuries and their occurrence.

8. No abuse to a child is acceptable, in fact I will go further and say, that before you reprimand a child, be sure you, yourself, are not

the cause of the behaviour being reprimanded. The medical reports in this case show that a child of 4 months has been subjected to

a brutal, vicious, and violent assault and having regard to the tender age of the infant the vulnerability and exposure of the infant

was disproportionately present and predominant in that the infant could neither defend himself nor flee the situation and as such

these factors are of consideration in measuring the penalty appropriate to the offence to be imposed.

9. The child in this case is now past his second birthday and will, at the age of majority, have access to all medical reports and the

court file in respect of these matters and rightly so and therefore will be able to judge for himself whether justice was done in this

case having regard to all matters before this court. The gravity of the offence before this court, as I have already said, is one at the

highest level of severity. Notwithstanding this, a plea of guilty resulting in the economies of marshalling witnesses, court time, and

exposure of witnesses to cross-examination usually results in a discounted penalty being an appropriate sanction to be imposed. Also,

because of the prudential and ethical considerations motivating the grant of a discounted penalty for a guilty plea, it follows that the

maximum sentence should never be imposed in response to a guilty plea unless the circumstances are exceptional.

10. Invariably, but not always, it would be rare for the circumstances of a case to be exceptional in the District Court given that the

offence may proceed on indictment which mandates the highest law officer in criminal law to consider whether to proceed on

indictment or not and in the instant case the DPP proceeded by way of summary disposal.

11. Although the Defendant has previous convictions for sexual assault and physical assault, that is not ordinarily a relevant factor in

assessing the gravity of the offence. Furthermore, judges must exercise great caution in imposing maximum sentences following a

guilty plea because of the effect it might have on defendants’ admission of guilt at an early stage and in turn the affect this would or

could have on victims within the criminal process.

12. I genuinely believe that in this case, regrettably but absolutely, there exists exceptional circumstances which warrant the

imposition of the maximum sentence. Those exceptional circumstances include, the age of the child, the severity of the injuries, the

initial misinformation to the hospital and the permanent affects of the injuries. That being said, the matter does not rest there, in

having regard, in a meaningful way to the plea in mitigation, which was both moving and poignant, and the affect a custodial

sentence will have on the accused given his prior experiences of such institutions. Also, the defendant, the court has been informed,

had a tough time as a child himself and had been placed within the Child Care System as a child and his experiences of this has

distressed him. The defendant accepts that what he did was wrong and accepts full responsibility for it. In my view, the defendant’s

acts were not only wrong, but gravely wrong and even seriously wrong.

13. Having regard to the aforesaid, and having considered the gravity of the offence and the appropriate penalty proportionate

thereto, I impose a 12 month prison sentence but having regard to the guilty plea I suspend the final three months for a period of 2

years on a bond of €500.

14. It would be remiss of me if I did not address the issue of an alternative to the custodial sentence I have imposed. I did think long

and hard about this but reached the conclusion that Community Services would not be appropriate alternative in this case having

regard to the unique circumstances which I have hereinbefore outlined.

15. I will fix recognisance at €750 own bond in event of appeal.