A court has dismissed a man's appeal against his jail term for failing to get help after his domineering partner brutalised their newborn son, who then nearly died on an operating table, because he wanted to protect her instead.
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In mid 2019, the man's partner had "brutalised him [their son] in a number of ways" in Goulburn, including dragging his head along the top of his bassinet and tossing him face first onto a bed, a recent judgment states that.
She also shook the baby and held him upside down by his feet.
The violence "cumulatively severely injured his brain", leaving permanent impairment and he would have died without urgent medical intervention.
"Indeed, he almost died in any event on the operating table," the judgment states.
The father, in his 20s, saw the violent acts but did nothing to help his son.
He then kept quiet for "quite some days", leaving the baby injured and "in grave danger".
You put your relationship with [ex-partner] - and a need to protect her - ahead of your duty to protect your son.
- Judge Andrew Colefax
The baby was finally taken to hospital after the man's mother, community midwives and a GP told the parents to do so.
The man pleaded guilty to failing to notify police about a child abuse offence and failing to give the baby the necessities of life.
The former being the principal offence while the latter was taken into account during sentencing.
During a hearing in September 2020, he lied when he disputed some of the agreed facts and said he did not see most of the violent acts.
The case was reopened then a month later, he reversed his evidence, saying his failure to tell the truth was "eating me alive".
The man was sentenced in February to 31 months' jail with a 20-month non-parole period.
NSW District Court judge Andrew Colefax, SC, said the man's failure to protect his son was "a complete abdication and abandonment of moral responsibility for him".
"You put your relationship with [ex-partner] - and a need to protect her - ahead of your duty to protect your son," he said.
Judge Colefax said he accepted she had a "domineering and dominating influence" over him.
The judge also reduced the sentence based on him helping authorities about her conduct.
In February, she pleaded guilty to two charges with the court told at the time that some of the facts were still being negotiated.
The man then launched an appeal, with ground one being that Judge Colefax erred in his approach to the guilty plea because the offender believed he had traversed his plea when his evidence changed.
Two was that the judge erred in his sentencing reduction for the offender's help in prosecuting his ex-partner.
Third was that no reasons were given for five findings, including that no other sentence other than full-time jail was appropriate.
The NSW Court of Criminal Appeal recently dismissed all grounds.
Justice Richard Button said Judge Colefax's approach to the guilty plea was "entirely orthodox" and correct because the change in evidence related only to the facts.
Justice Button said ground two had "a degree of artificiality about it" and the judge's leniency was generous as the offender's credibility was already damaged by lying.
As for the third ground, Justice Button said the details spoke for themselves in terms of the objective gravity of the offence.
"The finding that full-time imprisonment was appropriate was inevitable," he said.
"The assessment of the sentencing judge that the offending 'involved a complete abdication and abandonment of moral responsibility for [his son]' was correct."
Fellow appeal justices John Basten and David Davies said they agreed with Justice Button.
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