Director of Public Prosecutions v Lindsey (Sentence)
[2018] VSC 239
•22 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0188
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DWAYNE JUSTIN LINDSEY |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2018 |
DATE OF SENTENCE: | 22 May 2018 |
CASE MAY BE CITED AS: | DPP v Lindsey (Sentence) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 239 |
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CRIMINAL LAW – Sentence – Murder of 6 month infant – Extensive drug use and sleep deprivation leading up to offence – Methylamphetamine – Significant fatal head injuries – Significant non-fatal injuries – Not guilty plea – Jury verdict – Multiple prior convictions for dishonest offending – Limited prior history of violent offending – Subject to Community Corrections Order at time of offence – Importance of protection of community, general deterrence and denunciation – Lack of insight and genuine remorse – Prospects of rehabilitation guarded.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Papas QC | Solicitor for Public Prosecutions |
| For the Accused | Mr S R Johns QC with Ms E Clark | Slade & Parsons Solicitors |
HIS HONOUR:
Dwayne Lindsey. You have been found guilty, by the jury empanelled on your trial, of the murder of Chayse Dearing on 28 June 2016.
At the time of his death, Chayse Dearing was an infant of just six months of age, having been born on 21 December 2015. Chayse’s mother, Michelle Dearing, had separated from his father before Chayse was born. She commenced a relationship with you some three or four months before the events with which this case is concerned.
In the early hours of 26 June 2016, Chayse was left in your care when Michelle Dearing went shopping with other friends. Between then and about 8:00 am, Chayse suffered catastrophic head injuries which resulted in his death, together with a number of other non-fatal traumatic injuries to his face, head, and neck, and to his groin and genital areas. For reasons that I shall elaborate, I am satisfied, beyond reasonable doubt, that you inflicted all of those injuries on Chayse while he was in your care. By its verdict, the jury was satisfied, beyond reasonable doubt, that you inflicted the injuries, that resulted in his death, with the intention of causing Chayse to suffer really serious injury.
For the purposes of sentencing you, it is, first, necessary for me to make some findings of fact in relation to the circumstances of the offence for which you have been convicted. The findings, which I make, are consistent with the verdict of the jury, and are based on the evidence that was adduced at your trial.
As I stated, you commenced a relationship with Michelle Dearing when Chayse was two or three months of age. You initially lived with Michelle Dearing and Chayse in Craigieburn at the home of the mother of Melissa Jones, who was a friend of yours. In June 2016, Melissa Jones secured a unit for herself in Isla Avenue, Glenroy, and on 24 June, Michelle Dearing, Chayse and you moved into it. It was intended that Michelle Dearing, Chayse and you would live there with Melissa Jones for a short time until you obtained accommodation of your own.
On the next day, Saturday 25 June, you left the premises shortly after midday. Michelle Dearing and Chayse remained at the unit during the day and evening, and Melissa Jones was with them for most of that time, apart from a couple of hours when she went to her mother’s house in Craigieburn. At about 11:00 pm, Melissa Jones returned to the unit in the company of a friend, Vicky Eden. The three women, Michelle Dearing, Melissa Jones and Vicky Eden, then remained at the premises talking, and smoking methylamphetamine. During the course of the night, Michelle Dearing changed Chayse’s nappy, and she did not observe any marks, or signs of injury, to his groin and genital area, apart from some nappy rash.
You returned to the premises in Isla Avenue shortly after 1:15 am. Over the next three hours, you smoked methylamphetamine in the company of the three women. At about 4:00 am, Chayse awoke, and he was fed. His nappy was changed again. Melissa Jones, in her evidence, stated that she did not then observe any sign of bruising or injury on him.
At about 4:30 am, Michelle Dearing, Melissa Jones and Vicky Eden left the premises in order to go shopping. At that stage, you were feeding Chayse with a bottle, while you were seated on a porta cot mattress, that was located on the floor next to the wall heater in the lounge room. The witnesses described Chayse at that time as being contented and sleepy. The occupant of the adjoining unit, Brian Woods, had heard Chayse crying between about 1:00 am and about 3:00 am, but he did not hear any other noise from the unit you were in until about 8:00 am, when he heard noises that were consistent with you trying to arouse Chayse. He heard you repeatedly call out ‘Hey you’, and you swore and stamped your foot a couple of times. At 8:20 am, you telephoned Michelle Dearing, and you told her ‘There is something wrong with the baby, he’s not breathing’.
The Emergency Services were then contacted, and in response to that call, members of the Broadmeadows Fire Station, followed by the MICA paramedics, attended at the premises. Chayse was found to be unconscious and not breathing, and his skin was pale and blue in colour. The fire brigade officers immediately ventilated and resuscitated him.
At that time, you were observed to be in a state of high anxiety. Mr Glendon Bail, the experienced MICA paramedic, described you as agitated, erratic and heightened in your demeanour and conduct. He considered that you had clearly been affected by the consumption of drugs. Michelle Dearing, Melissa Jones and Vicky Eden returned to the unit, and shortly after that, you fled the scene. You remained in hiding until your arrest in Sunshine North four days later on 30 June.
In the meantime, Chayse was conveyed as a matter of emergency to the Royal Children’s Hospital. On arrival, he was placed in the intensive care unit. Tests, that were conducted on him, revealed that he had sustained brain damage, that was so extensive that brain death had occurred. Accordingly, his life support was withdrawn, and Chayse passed away on 28 June.
The evidence of the forensic pathologist, who performed the autopsy, Dr Michael Burke, and of the specialist neuropathologist, Dr Linda Isles, established that the immediate cause of the death of Chayse was shearing of the bridging veins between the dura and the brain, with an associated subdural haemorrhage, that resulted in the deprivation of blood and oxygen to the brain. That mechanism had been caused by the application of substantial acceleration and deceleration forces to the head. Both practitioners gave evidence that previously it was considered that sufficient forces, to result in a subdural haemorrhage, could be generated by vigorous and significant shaking of a baby, without the need for any accompanying blunt force trauma. However, the more current view is that such an injury can only occur in the presence of direct blunt force trauma to the head, either alone, or accompanied by shaking, as it is now considered that shaking alone would not be capable of generating sufficient forces to result in disruption to the bridging veins.
Most relevantly for this case, the medical practitioners, who gave evidence at the trial, made it clear that particularly significant force would need to have been exerted in order to produce the fatal injury that resulted in Chayse’s death. Dr Isles, the neuropathologist, noted that while it is not possible to establish biomechanical models to determine the degree of force necessary to cause such an injury, nevertheless the injury in this case was so severe that it is seen very infrequently. Accordingly, she considered that something, significantly more forceful than normal handling of an infant, must have occurred in order to produce the spectrum of injury sustained by Chayse.
Associate Professor Deborah Colville, the consultant ophthalmologist at the Royal Children’s Hospital, examined Chayse’s eyes using an ophthalmoscope. She found that there were numerous retinal haemorrhages in each quadrant of both of his eyes. She said that ordinarily the severity of such an injury is measured by the number of haemorrhages in each eye, but the haemorrhages in Chayse’s eyes were too numerous to be able to be counted. Dr Colville, who has specialised in the treatment of children for more than thirty years, said that she had never previously seen haemorrhages that were as severe as those in Chayse’s eyes. She said that it is ‘extremely rare’ for such severe haemorrhages to occur. Dr Colville considered that the haemorrhages were the result of repeated shaking or acceleration and deceleration of the infant’s head.
In the context of the fatal injuries that I have just described, Chayse had also sustained multiple bruises to his face and skull. In particular, there was bruising to his chin, right forehead, left forehead, and left temple, and to the back of his head and his neck. Dr Burke considered that there were at least five planes of bruising, which meant that there had been at least five separate blunt force impacts to the face and skull.
In addition, Chayse suffered injuries to his neck, and to his groin and genital region, that were of a particularly troubling nature, albeit that they were not the direct cause of his death. Based on the evidence to which I have referred, the only reasonable conclusion that can be drawn is that they were caused by you. The evidence also demonstrates that they were the result of the same incident in which the fatal injuries were inflicted to Chayse. Mr Woods did not suggest that he heard the sound of any other incident occurring in the unit occupied by you and Chayse. When you described to the police, to Michelle Dearing and to Melissa Jones, what had occurred, you did not suggest that there had been more than one event which had resulted in injury to Chayse. Thus, I am satisfied, beyond reasonable doubt, that the non-fatal injuries, to the neck and groin areas, were sustained at about the same time that you inflicted the fatal injuries that resulted in Chayse’s death.
The first group of non-fatal injuries consisted of three linear abrasions to the neck. Dr Burke described three such lesions, each measuring approximately half a centimetre in thickness. The first lesion was 5.5 centimetres long, extending transversely across the neck at the level of the mid-neck. The second such injury was half a centimetre below that injury, measuring 8 centimetres in length and also extending across the neck. The third injury was a 4.5 centimetre long abrasion at the left base of the neck. Dr Burke described each of the injuries as linear abrasions. On resecting the neck, he found that there was bruising underlying them. He stated that the injuries had been caused by the application of external pressure or pressures to the neck, and he thought they were probably caused by the application of a ligature to the neck. Unsurprisingly, he expressed the view that he would not expect such injuries to occur in the course of normal handling of an infant.
Dr Geetike Badkar, a forensic paediatrician at the Royal Children’s Hospital, reviewed Chayse on the day of his admission to hospital on 26 June. Dr Badkar was a particularly impressive witness. Unsurprisingly, she expressed concern about the linear pattern of the bruises to the neck, and she considered that they might have been the effects of strangulation, or attempted strangulation, of Chayse. When it was put to her that the injuries could have been caused by pressure from the removal of clothing, or from Chayse somehow becoming entangled in his clothing, she stated that it would have required a significant amount of force to be exerted, in order to explain the nature and extent of the marks on the neck.
The second group of non-fatal injuries sustained by Chayse were to the groin and genitalia. Dr Burke found four such injuries. There were two patterned parallel skin abrasions, each two centimetres long, to the left groin and left scrotum. There was a third abrasion to the left side of the shaft of the penis measuring .5 centimetres long. Fourthly, there was bruising to the underside of the penis at the foreskin measuring 1.5 centimetres. Dr Burke attributed those injuries to blunt force trauma. Dr Burke, who is an experienced forensic pathologist, stated that he had never seen injuries consistent with what he observed had been inflicted on Chayse. He said that the injuries were in a recessed area in the groin, and it would be very unusual for them to occur accidentally. He could not postulate how the patterned injuries to the groin and scrotum had been caused.
Dr Badkar expressed similar views. She stated that it would have required a significant amount of trauma to produce the injuries observed by her to the groin and genital area. In her practice, she has seen a number of babies who have been accidentally dropped, but she has never seen genital bruising occasioned to a child as a consequence of such a fall. Moreover, Dr Badkar has treated thousands of children for a range of reasons, including accidental falls and accidental injuries, and she has never previously encountered the pattern of genital injury that had been sustained by Chayse.
There was, of course, no eye-witness to the events in which you inflicted those injuries to Chayse. The witness Craig Barlow gave evidence that while you were both in custody in the Melbourne Remand Centre, you told him that you had punched Chayse, kicked him in the genitals and applied a ligature to his neck. However, I was not satisfied that Barlow was a truthful witness, and I disregard his evidence for the purposes of sentencing you.
When you spoke to Michelle Dearing and Melissa Jones upon their return to the unit after you telephoned them, and when subsequently, after your arrest, you spoke to the police, you sought to explain the injuries sustained by Chayse. You stated that you had fallen asleep on the porta cot mattress with Chayse on your chest. You then awoke with a startle believing that you felt or saw a spider on you. As a result, you jolted, causing Chayse to fall either onto the heater or onto the floor. You then panicked, and attempted to revive Chayse. At your trial, your counsel submitted to the jury that there was a reasonable possibility that all of the injuries, incurred by Chayse, occurred in the manner described by you, namely, that there was an initial accidental injury, and that you had caused the remaining injuries in a desperate panicked attempt to revive Chayse. It was pointed out to the jury that your judgment and your actions had been clouded and affected by a lack of sleep over the previous four days, and by the heavy consumption by you of methylamphetamine during that time.
Unsurprisingly, the jury did not accept that such a possible hypothesis was reasonably open on the evidence. It did not account for the nature, degree or severity of the injuries sustained by Chayse. On the evidence, the jury was well justified in being satisfied, beyond reasonable doubt, that you intended to cause really serious injury to Chayse at the time at which you inflicted the fatal injuries from which he died.
As already stated, I am satisfied that the injuries to the neck and groin were sustained by Chayse at the same time that you inflicted the injuries that resulted in his death. Michelle Dearing and Melissa Jones both gave evidence that he had no injury or condition, other than nappy rash, at the time that they left the premises at 4:30 in the morning. No possible explanation was, or could be, advanced for the significant injuries to the groin. Further, while theoretically it is possible that the abrasions and bruising to the neck might have been the result of a panicked attempt to remove the infant’s clothing, there is no suggestion that such an attempt took place. In the context of the other traumatic injuries sustained by Chayse, the only reasonable conclusion is that you also deliberately inflicted the injuries to the groin and to the neck with the intention of causing him, at the least, serious injury.
Although the injuries to Chayse’s neck and groin were not fatal, they are of direct relevance in this case. Those injuries are an indication of the nature of the event in which Chayse sustained his fatal injuries, and, in particular, they are a marker of the degree and nature of the forces that you applied to Chayse in inflicting the fatal injuries from which he died.
Taken together, the fatal injuries, and the non-fatal injuries, suffered by Chayse, bespeak eloquently of a vicious and violent attack that you launched on Chayse at about 8:00 am on 26 June. While the whole incident might have taken place over a relatively brief time, it was of sufficient duration that enabled you to inflict a number of separate bruises to Chayse’s head, to vigorously shake Chayse, to cause ligature marks to his neck, and to inflict severe injuries to his groin and genital area. Those injuries, in combination, bear the hallmarks of a ferocious, brutal and sickening attack, inflicted by you on a defenceless, harmless and innocent baby.
At your trial, the prosecution did not contend that, in inflicting those injuries on Chayse, you intended to kill him. Rather, it was put that you intended to cause him really serious injury. In light of the nature, extent and degree of the injuries sustained by Chayse, and consistent with the manner in which the case was conducted at trial, I am satisfied, beyond reasonable doubt, that, in inflicting those injuries on Chayse, you intended him to suffer really serious injuries of a most grave nature.
There was no evidence at your trial as to why you murdered Chayse Dearing. The neighbour, Brian Woods, did not hear any crying or any other noise from the baby, that might have provoked or irritated you beyond the limits of your patience. In those circumstances, it is most disturbing that there is no explanation for your conduct.
It is clear, on the evidence, that you had been using methylamphetamine in the period leading up to the murder by you of Chayse. Mr Glendon Bail, the experienced MICA paramedic, had no hesitation in drawing that conclusion from your conduct at the time. In the interview with the police after your arrest four days later, you stated that you had been using drugs a lot. It is probable that, at the time you committed the offence, you were affected by the consumption of drugs and by the fact that you had not slept during the previous three or four days. It was also quite possible, if not probable, that your murderous attack on Chayse was fuelled by the combined effects of the drugs that you had consumed, and by your lack of sleep.
I hasten to add that it is no excuse, at all, that you were affected by drugs at the time at which you murdered Chayse. Our courts have made it clear that the consumption by an offender of intoxicating drugs, such as methylamphetamine or ice, does not mitigate or reduce the offender’s culpability at all. Existing sentencing principles preclude me from regarding the fact, that you were affected by methylamphetamine at the time of the offence, as an aggravating circumstance. However, the effects of methylamphetamine, and other such drugs, are well known and well understood, particularly by those who choose to use them. Our courts have made it clear, that any person who chooses to use such a drug as methylamphetamine, and then proceeds to commit a serious crime while affected by it, cannot expect any leniency or mercy from the courts whatsoever. Such persons will be held fully accountable and responsible for the acts that they commit while affected by such poisonous substances.
It does appear that your murderous assault on Chayse was out of character with the attitude that you had displayed to him while you were living with Michelle Dearing and Chayse at the Craigieburn premises. Both Michelle Dearing and Melissa Jones gave evidence that, during that time, you had shown yourself to be quite caring towards Chayse, and patient with him. However, that evidence, while relevant, does not in any way palliate, or diminish, your culpability for the appalling brutality with which you inflicted the injuries on Chayse that I have described.
As I have mentioned, when the Emergency Services, and Michelle Dearing and Melissa Jones, arrived at the unit, you were observed to be in a state of high anxiety. I am not satisfied that your demeanour, at that time, was the product of any remorse felt by you for what you had done, or distress concerning Chayse’s critical condition. Rather, I consider that your behaviour was substantially, if not wholly, driven by your concern for what would happen to you if the truth were revealed as to what you had done. You concocted a false account of what had happened to Chayse, which you related to Michelle Dearing and Melissa Jones, before rapidly decamping from the scene, and remaining hidden for four days. After your arrest, you adhered to the same false account when interviewed by the police. Having listened to your recorded interview, I am not satisfied that, at that time, you held any feelings of remorse for what you had done, or any grief for the tragic death of the six month old baby who had been entrusted to your care.
At your trial, you maintained your innocence, which was your right, and you are not to be penalised for doing so. In the course of the trial, your counsel accepted that you had caused the fatal injuries sustained by Chayse, and, in particular, the acceleration-deceleration injury to his brain. Such a concession was, in my view, inevitable and inescapable. It did not reflect any subjective acceptance by you of responsibility for causing the death of Chayse, nor was it, in any measure, an indication that you felt or experienced any remorse for doing so. While, in the course of evidence at the trial, you grimaced and became tearful, I was far from satisfied that, by doing so, you were experiencing genuine feelings of grief or regret over what you had done. Rather, your demeanour appeared to me to be a contrived and transparent attempt by you to gain the sympathy of the jury for yourself.
You have been convicted of the most serious crime in our legal system, the murder of another human being. The maximum sentence for that offence is life imprisonment. Your offending in this case falls within one of the highest categories of seriousness of the crime of murder. At the time of his death, Chayse Dearing was just six months old. He was entirely harmless, helpless and vulnerable, being at an age at which he was totally dependent on adults for protection and care. At the time at which he was murdered, Chayse had been entrusted to your care by his mother, and as such it was your responsibility to keep him safe and secure while his mother was absent from the unit. In gross violation of that special trust, you subjected Chayse to a series of brutal acts of cruel, vicious and sickening violence, which resulted in a number of severe injuries to him, including those from which he died.
The law regards all human life as unique and sacred. However, the life of an infant or a young child is especially precious, because children are so vulnerable and defenceless. The ordinary, natural instinct of any decent human being is to feel tenderness and protectiveness to an infant or young child. The brutal assault by you on Chayse was so contrary to the fundamental values of our society as to defy any comprehensible explanation. What you did to Chayse was an act of total and unmitigated evil. As such, your culpability, for the crime that you have committed, is of a particularly high order.
The direct victim of your crime was, of course, the infant Chayse Dearing. At his age, he had the whole of his life before him. As a result of your cruel crime, he will never grow into childhood, never experience his teenage years, or mature into adulthood. Your senseless and vicious crime deprived him of his most basic right, his right to life.
There are also a number of other victims of your crime, who have suffered, and will continue to suffer, as a result of it. I have read the victim impact statements of his mother, Michelle Dearing, of his foster grandmother Mariah Strahan, and of his grandfather Gavin Dearing. Each of those statements depict, in most moving terms, the depth of the pain and grief suffered by them as a result of your appalling crime. The lives of each of those persons have been, and forever will be, blighted by the terrible tragedy that you have inflicted upon them.
In addition, I have read the victim impact statement of Glendon Bail, the Mica paramedic who attended Chayse after the emergency services were summoned to his unit. Mr Bail is an experienced and senior paramedic, but notwithstanding all that he has experienced throughout his career, he was particularly marked and affected by the shocking injuries that he observed that had been inflicted by you on Chayse. It was evident, at the trial, that Mr Bail, and all those who attended Chayse, were deeply affected by the injuries that they observed on Chayse. It is appropriate, at this point, to acknowledge, with gratitude, the dedication, compassion and courage of the Emergency Services personnel, who attended to Chayse, and who tried so valiantly to preserve his life.
I have referred to the victim impact statements, not because it is my task to determine your sentence according to emotional considerations, such as sympathy or retribution, but so as to properly acknowledge the enormity and impact of the most serious crime that you have committed.
I turn, then, to matters relating to your background and personal circumstances.
You are 34 years of age, having been born in July 1983, and you have two younger sisters and a stepbrother. Your parents separated when you were aged seven years, after which you had little contact with your father. You had a difficult and fractious relationship with your stepfather during your childhood and your youth. You attended Craigieburn Primary School and Mickleham Primary School, and subsequently Niddrie Technical College. However, you had some issues at school relating to being bullied, and you completed your education, at Year 11 level, at Sydney Road Community School.
After leaving school, you commenced a panel beating and spray painting apprenticeship, which you did not complete. Subsequently, you had a number of different jobs, including non-skilled engineering work, cabinet making, forklift driving and factory work. However, that employment was intermittent, and you had a number of periods of unemployment as a result of your burgeoning drug habit. In late 2015, you served a short sentence of imprisonment in circumstances to which I shall shortly refer. Following your release from prison at the end of 2015, you did not gain any further employment, and you were on Centrelink benefits at the time of the offence.
You have a long history of substance abuse, commencing at the age of 12 years, when you commenced to smoke cannabis. It would appear that your use of cannabis peaked during your teen years, but you continued to smoke that substance occasionally up to the time of the offending. At the same time, you commenced using heroin at around the age of 18 years. You used it regularly, and did so until about six months before the offence.
Most relevantly, you also commenced smoking methylamphetamine (or ice) at about the age of 18 years. You told Mr Martin Jackson, the neuropsychologist who assessed you on 18 April last, that you had smoked it every day, and that in the period immediately preceding the offence, you had been using significant quantities of it each day. As I have already stated, your consumption of methylamphetamine, and the associated sleep deprivation resulting from it, may explain why you committed such an atrocious crime, but they do not mitigate your offending.
You also have a long criminal history, dating back to December 2002, when you were convicted, by the Broadmeadows Magistrates’ Court, of burglary, theft and unlawful assault. Most of your previous convictions are for offences involving dishonesty, the possession and trafficking of illicit substances, and motor vehicle offences. You have two convictions for unlawful assault, the most recent of which was in December 2015.
In February 2013, you were convicted by the Melbourne County Court of one charge of attempted armed robbery, and sentenced to 14 months’ imprisonment, with a non-parole period of 5 months. The offence took place in Swanston Street, Carlton in the middle of the afternoon, when you approached and held a knife at the chin of your victim, who was then a student aged 23 years, and demanded that he give his mobile telephone to you. Your victim noticed that you appeared to be either drunk or drugged at the time of the offence.
In addition, in April 2014, you pleaded guilty, in the County Court, to two charges of reckless conduct endangering life, and you were sentenced to a total of 12 months’ imprisonment, with a non-parole period of 6 months. Those charges concerned two connected incidents that occurred in Fawkner one night in November 2011. At the time of each incident, you were driving a motor vehicle in which your then partner, and your three month old daughter, were passengers. The first incident occurred when you drove, at at least 100 kph, through a designated work site, for which the applicable speed limit was 40 kph. In doing so, you came dangerously close to two persons, who were part of a team that was regulating traffic. The second charge related to driving by you after you left that work site, and drove along Sydney Road at an excessive speed while swerving in and out of traffic. In doing so, your vehicle came very close to the vehicle of another person who you knew. The two vehicles came into contact with each other, following which the other vehicle lost control, and hit various objects. As a consequence, the driver of the other vehicle was killed. On your plea, it was accepted that at the time you were not affected by drugs or alcohol.
At that time, you had been in a long term relationship of approximately eight years, and you have two daughters from that relationship, aged 9 years and 6 years respectively. You separated from your partner after the incident that I have just described, but you remained in contact with your two children, and you last saw them in early May 2016. Due to your current circumstances, you have not since had any contact with them, and it is not likely that you will do so at least until they reach their teenage years.
On the occasion of at least three of your previous convictions, you have received sentences by the Court that required you to attend upon a drug and alcohol counselling and treatment service. On one occasion, before your sentence for attempted armed robbery in February 2013, you had attended at Moreland House for assessment, and had received some supervision and counselling. Your sister, Kaneal Lindsey, in a helpful reference to the Court, stated that each time you have attempted to address your drug habit, those with whom you were associated in that environment would find a way to lure you back to your addiction.
Most recently, in September 2015, you were convicted of one charge of possessing methylamphetamine, and sentenced to a community corrections order for a period of 12 months. It was a condition of that order that you attend for assessment and treatment for drug abuse. You did attend a meeting for assessment of your position, and you were scheduled to attend a drug counselling session on 7 December. However, in the meantime, in November 2015, you were remanded in custody on a different matter. Upon your release on 16 December, you did not make any effort to reconnect with the drug counselling service, and you continued to use illicit substances, contrary to the terms of your community corrections order.
On your plea, I was provided with two reports of a psychologist, Mr David Ball, who assessed you in December 2011 and February 2012, for the purposes of a bail application by you in respect of the charges against you, that culminated in your guilty plea to two counts of reckless driving. At that time, Mr Ball, unsurprisingly, came to the view that you satisfied the diagnostic criteria for polysubstance dependence. He also diagnosed you to satisfy the criteria for post-traumatic stress disorder, stemming directly from the motor vehicle accident in which you were involved in November 2011. Mr Ball noted that you suffered a raft of dependent self-defeating and anti-social personality features, that fell short of the diagnostic criteria for personality disorder. Mr Ball’s reports are of historic relevance, but I note that it is not suggested that, at the time that you committed the offence for which you are to now be sentenced, you were suffering in any way from the post-traumatic stress disorder diagnosed by Mr Ball.
In addition, as I have already noted, in April this year, you were assessed by Mr Martin Jackson, a clinical neuropsychologist, to determine your current level of cognitive function, and to provide an opinion whether there was any evidence of a neuropsychological disorder, which might account for your offending. Mr Jackson provided a thorough and detailed report. In essence, he concluded that you have an overall intellectual quotient of 95, which places you in the average band. Mr Jackson was of the view that your cognitive function, at the time of the offending, might have been lower, due to the effects of your consumption of methylamphetamine and associated sleep deprivation. Mr Jackson also concluded that you do not have a neuropsychological or cognitive condition that would adversely affect your capacity to cope with imprisonment. He considered that you presented as mildly to moderately depressed, anxious and stressed, which, it would appear, is principally the result of the circumstances of your incarceration. The report of Mr Jackson is of some relevance, because it does indicate that, ultimately, you have the intellectual capacity to rehabilitate yourself, during the term of imprisonment which you will face, and when ultimately you are released back into the community.
It is, of course, clear that for the duration of your term of imprisonment, you will need to be maintained in protective custody, because of the hostile attitude of other prisoners to those, such as yourself, who have been involved in offences against infants and young children. I have been provided with a detailed affidavit by the Acting Assistant Commissioner, Sentence Management Division, of Corrections Victoria. That affidavit establishes that there are a significant number of prisoners who are required to be kept in a protection unit while they are in custody, and that, as a consequence, Corrections have established a number of appropriate protection units for such prisoners. The affidavit sets out, in some detail, the circumstances in which prisoners are kept and maintained in those protection units. Based on that evidence, I am satisfied that you will not suffer any significant disadvantage or deprivation as a result of being maintained in such a unit.
I do accept the submission made by Mr S Johns QC, who appeared with Ms E Clark at your trial and on your plea, that nevertheless, throughout your term of imprisonment, you will suffer a degree of anxiety or apprehension subjectively, because you will feel vulnerable to hostility from other prisoners, and because of your anxiety that the steps taken by the authorities may not be sufficient to protect you from them. To that limited extent, I am satisfied that imprisonment will be more onerous for you than for an offender who has committed an offence that does not provoke the opprobrium of his fellow prison inmates.
In addition, I note the diagnosis by Mr Jackson that you suffer from ongoing depression, anxiety and stress because of your current legal situation and because of the anxiety that you experience arising from threats you consider you have received from other prisoners. You are currently prescribed an anti-depressant medication, Effexor.
During the time in which you have been custody, you have worked in the prison factory, and, subsequently, in ground maintenance and horticulture. In addition, you have undertaken and completed a number of courses, including a six hour drug and alcohol course, four sessions of a 24 hour drug, alcohol and methylamphetamine effects course, and two courses for managing loss, managing worry, and managing grief and emotions. You have also gained a certificate of attendance at the Prison Legal Education and Assistance Project Court Readiness Program, and a certificate on completing an art therapy program.
During your time in custody, you have been supported by your father, and your two sisters, who have visited you regularly, and your father and elder sister were present throughout the trial. In light of the enormity of your offending, and your long criminal history and drug addiction, some caution must be exercised in assessing your prospects of rehabilitation upon your ultimate release into the community. Certainly, the fact that you do not have any permanent cognitive impairment, that you have ongoing family support, and that you have engaged in programs and employment in prison, are positive factors pointing in that direction. In addition, I note that you have also embraced religion, which, if approached constructively and in a humanitarian spirit, could be a positive force in your life.
Your two sisters have provided helpful character references in relation to your background and personality. Each of them have described how you have been gentle, kind and considerate with your two young daughters, and that you have demonstrated a capacity to be protective and loving towards them. Indeed, as I have already observed, the evidence at the trial indicated that you had also, previously, acted in a kind and gentle manner towards Chayse. That evidence, and the testimonials of your sisters, however, do not in any way reduce or affect the enormity of what you did to Chayse, or diminish your culpability for your dreadful crime. They do, however, to a limited extent, place that offending in some context in your life.
The principles, which apply to determining your sentence, are well established and understood. It is necessary that the sentence, which I impose on you, be sufficient to adequately express the condemnation by the Court, and by the community, of your appalling crime, and to uphold the sanctity of human life, which is the most fundamental and precious value in our society. As I have already noted, while the law does not differentiate between the life of one human being and another, nevertheless the law and the community places special value on the lives of its infants and young children, who are vulnerable and so in need of our protection. It is necessary that the sentence, that I impose on you, be sufficient to uphold that value, and to fully express the abhorrence of the Court and of the community of your horrific crime.
In addition, the sentence, that I impose on you, must be of sufficient severity to serve as a general deterrent to others, by constituting a clear and unambiguous message that conduct of the type in which you engaged will be met with the most severe of sentences, in which mercy plays no role. It is only in that way that this Court can do its best to protect the lives of the young and vulnerable members of our society.
It is also important that the sentence be of sufficient duration to provide protection to the most vulnerable members of our community from you, at least until you are properly assessed to be safe to return to the community.
In that regard, it is important that the sentence, which I impose on you, is adequate to ensure that you yourself are deterred from further such wrongdoing, and to instil in you some insight into, and understanding of, the dreadful nature of the crime that you have committed.
In the course of sentencing submissions, Mr N Papas QC, who appears for the prosecution, agreed with the submission made by Mr Johns that I should not impose a sentence of life imprisonment, but that I should impose a substantial head sentence, with an appropriate non-parole period. In light of the gravity of your offending, I gave careful consideration as to whether, notwithstanding the concession by the prosecution, nevertheless I should impose a sentence of life imprisonment on you. However, on balance, I do not consider that this is a case in which such a sentence is appropriate. There is no evidence that your crime was premeditated. As accepted by the prosecution, and consistently with the jury’s verdict, I am to sentence you on the basis that you did not intend to kill Chayse, but that you intended to cause him really serious injury, albeit of the gravest kind. In addition, you have a limited previous history of offending involving violence.
Nevertheless, the sentence, which I am to impose upon you, must give full effect to the purposes of sentencing, to which I have referred. In particular, it is necessary that it reflects adequately the gravity of your offending, which involved, as I stated, a vicious, brutal and sickening attack on a defenceless and helpless infant, for no reason. You have not demonstrated any insight into, or remorse for, your crime. While at your trial counsel on your behalf accepted that you were physically responsible for the injury that resulted in Chayse’s death, namely, the subdural haematoma, that concession was an inevitable consequence of the overwhelming weight of the medical evidence, and was not indicative of any acceptance by you of personal responsibility for, let alone insight into and contrition in respect of, the murder by you of Chayse.
On the other hand, I take into account that, for the reasons that I have outlined, during your period of incarceration you will suffer some anxiety over your perception that other prisoners may seek to exact retribution from you for what you have done. I also take into account that you have shown some positive signs for the future, in engaging in employment, and in undertaking a number of courses, during your time in custody.
Taking those considerations into account, I sentence you as follows for the murder of Chayse Dearing. I sentence you to 34 years’ imprisonment. I fix a minimum of 27 years before you become eligible for parole.
Pursuant to s 18(4) of the Sentencing Act 1991, I declare that a period of 692 days be reckoned as already served under the sentence which I have imposed, and I shall cause that declaration to be noted in the records of the Court.
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