HKSAR v. JOHN RODNEY N ALCONABA

DCCC299/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 299 OF 2010

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Reasons for Sentence

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1.  John Rodney Alconaba, you have been convicted of the offence of ill-treatment of a child, contrary to section 27(1) of the Offences against the Person Ordinance, Cap.212.

2.  The victim of this offence was your own son, John-keith, who it appears from your record of interview you call John. 

3.  The offences are alleged to have taken place between 1 October 2009, when he was 15 months’ old, and 20 January 2010, when he was 19 months’ old.

4.  Since September last year you assumed responsibility for taking care of John because you had become unemployed and both your wife and your mother, with whom you lived, worked in the evenings, your wife as a waitress and your mother in a bakery.

5.  The following month, in October 2009, your wife saw you playing with John by shaking his body fiercely.  She was worried and stopped you on that occasion.

6.  You have admitted that starting in December you had formed the habit of shaking him at night time out of annoyance when he did not stop crying.  In your video interview with the police, a copy of the transcript of which I was given, you said you would shake him for one to two minutes before putting him back in bed and giving him a bottle so that he would go to sleep.  You admitted to shaking him many times in this way.

7.  You have admitted that the last time that this happened was on 17 January this year.  You say you shook him for five to ten seconds with great force between 10 and 11 pm.  He then defecated and you had to wash him.  You put him on the bed and he started to vomit.  Because he was repeatedly exhibiting signs of nausea you called your wife, who rushed home to find John’s face looking very pale and he was repeatedly vomiting.  You and she then bought some proprietary medicine that did not appear to have any effect. 

8.  His condition deteriorated over the following days despite the fact that you had taken him to see a doctor at a private clinic.  He continued repeatedly to vomit.

9.  His condition became so serious that around 1.00 am on 20 January you and your wife took him to Queen Elizabeth Hospital for treatment.  The doctors there found that he was suffering from the symptoms set out in the Summary of Facts you have admitted.  Their provisional diagnosis was that he was suffering from suspected shaken baby syndrome.

10.  He was found to be suffering from poor peripheral circulation; low grade fever of 37.8 degrees Centigrade; eyes staring to the left side; both pupils 3 millimetre sluggish light response; neurological:  increased muscle tone of 4 limbs but more severe on the right side; fundi:  bilateral retinal haemorrhage; and old fracture at right occipital bone.

11.  Following scans of the cranial region brain damage was noted which included hypodensities in the front parieto-occipital lobe; extra axial hyperdensities in the left frontal region and along the falx.  Left acute/sub-acute subdural haemorrhage; ischaemic injury involving most of the left cerebral hemisphere and areas of the right cerebral hemisphere.

12.  Examination of John by an eye specialist team disclosed multiple retinal haemorrhage at the right eye, pre‑retinal haemorrhage at the macula, retinal haemorrhage and vitreous haemorrhage at the left eye.

13.  The prosecution cannot prove that the old fracture of the right occipital bone had any connection with your treatment of John but Mr Andrews has conceded that the other signs exhibited by John on his admission to hospital on 20 January were the result of the manner in which you had treated him.

14.  He was operated on by a neurosurgeon on the night of his admission.  For the next 12 days he was kept in the Paediatric Intensive Care Unit before being transferred back to the general ward.

15.  Initially in the general ward, John showed little interest in the surrounding environment with very little movement of his limbs.  However, with the introduction of occupational therapy and physiotherapy, he showed marked improvement.  He was able to sit and reach out with his left hand, stand with support, babble and respond well to stimulation.  His feeding also improved and he was able to tolerate a normal diet from 9 February onwards.

16.  Further investigation showed normal hearing but impaired vision.  A brain CT scan on 3 February 2010 showed resolving left-sided subdural bleeding but old insult remaining in the left cerebrum and right lower frontal lobe.  Electroencephalogram showed no epileptic focus.

17.  When he was discharged, John showed improvement neurologically.  There were active movements of four limbs but with decreased muscle power.  He could sit with good balance and could get up from a sitting posture with assistance.  He exhibited response to surroundings, active eye fixations and vocalisations.

18.  John was discharged home with your wife on 12 February.  When he was seen at the paediatric clinic aged 20 months on 10 March, he had remained seizure free.  Right handed tightness was less obvious although he avoided using his right hand.  He was able to say a few single words and walk without support.

19.  Examination showed increase in muscle tone and briskness of jerks of right upper and lower limbs.

20.  Although John was due for follow-up at Queen Elizabeth Hospital, he was unable to receive such follow-up because your wife had arranged for him to be taken back to the Philippines to be cared for by your sister. 

21.  Fortunately, however, your wife has arranged for John to be brought back to Hong Kong in the last few weeks for medical examination.  As a result, I have received medical reports from Dr Amy Chan of the Department of Paediatrics at Queen Elizabeth Hospital and Dr Flora Lau of the Hong Kong Eye Hospital.

22.  Although his development is otherwise normal for a child of his years, John is currently exhibiting two areas of disability.  He currently has poorer vision in his left eye than in his right eye.  Dr Lau has suggested that his right eye be occluded for two hours each day to train up his left eye but John is showing resistance to having his right eye covered. 

23.  Dr Lau says it is difficult at the moment to comment on his long-term prognosis in regard to his vision as the effect of the injury to his brain as well as his readiness to comply with covering his right eye will affect the outcome. 

24.  There is no dispute that this problem was occasioned by the offence committed by you.

25.  It follows from what I have said that there is at least a possibility that there may be some long-term effect on the vision to his left eye.

26.  His other disability relates to his right hand and arm.  He has some weakness in his right hand which means that he shows decreased use of that hand.  It appears that he has difficulty opening the index finger and thumb of his right hand and has exhibited what Dr Chan describes as brisk jerks over right upper limb.

27.  Mr Tolliday-Wright has ultimately conceded that he cannot exclude the possibility that these disabilities to John’s right arm and hand may be the result of an accident to his arm unconnected to this offence.  I therefore do not take them into account when considering the question of sentence.

28.  As you know, by chance I had the opportunity of seeing John today in court.  He had been brought into court by your wife and ran towards you in the dock.  It was obvious to me that he is a cheerful and lively little boy who is very fond of you.  Fortunately, there do not appear at the moment to be any signs that he is in danger of suffering further disabilities as a result of your conduct.  There are no signs at the moment, for instance, that he is likely to suffer from epileptic fits.

29.  What seems to be a reasonably optimistic prognosis is a matter that this court takes into account but it does not detract from the fact that the consequences could have been far more serious, nor does it detract from the fact that the offence you committed on your own very young son is an offence that society views very seriously.

30.  The maximum penalty for this offence was increased to 10 years’ imprisonment in 1995 to reflect the public’s abhorrence of this sort of offence.

31.  While the court accepts that it can be at times stressful for a person who cares for a very young child, it is a stress that all parents suffer from time to time if they themselves are responsible for looking after a child.  It provides no excuse for repeatedly assaulting a child as you did.  You would have known that it was totally inappropriate to treat a vulnerable young boy in this way.

32.  What is more, it was not an isolated incident of loss of control on your part but a course of conduct you persisted in on many occasions.

33.  A sentence of imprisonment is inevitable to reflect the gravity of the offence you have committed.

34.  In deciding the appropriate length of the term of imprisonment, I have borne in mind the factors to which I have already referred, but also to the fact that you contacted your wife urgently when John displayed the symptoms he did on the night of 17 January.  You did not ignore those symptoms but took him to a private doctor and ultimately to Queen Elizabeth Hospital.

35.  I bear in mind that you have no similar previous convictions or any conviction for an offence of violence.  I disregard your unrelated previous conviction for possession of drugs.  I bear in mind that you appear to be a person who has a good employment record.  I also bear in mind that your wife appears to be anxious that the family should stay together, and the affection that I have seen which John obviously bears towards you despite what you have done.  It is fortunate that he probably will have no memory of these events.

36.  When reading the background report from the Probation Service I was concerned to read that you appeared to be suggesting to the probation officer that you had simply been playing with your son.  I was relieved to hear through your counsel, Mr Andrews, that you fully accept responsibility for your conduct and accept that it was not simply playing.

37.  Taking all these circumstances into account, I am of the view that the appropriate starting point for your offence is a sentence of 2 years’ imprisonment. 

38.  You pleaded guilty and are entitled to the usual discount of one-third.  I accordingly sentence you to 16 months’ imprisonment.