Director of Public Prosecutions v McDonald
[2020] VSC 845
•15 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0204
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JOSEPH McDONALD | Accused |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 December 2020 |
DATE OF SENTENCE: | 15 December 2020 |
CASE MAY BE CITED AS: | DPP v McDonald |
MEDIUM NEUTRAL CITATION: | [2020] VSC 845 |
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CRIMINAL LAW – Sentence – Child Homicide – Plea of guilty – Accused caused catastrophic head injuries to infant son in fit of anger – Forceful shaking with blunt impacts to head and spine – Anger management problems – Cannabis-use disorder – Internet gaming disorder – Early plea of guilty – No prior history of violent offending – Remorse – Youth – Impact of custody and COVID-19 restrictions – Reasonable prospects of rehabilitation – Importance of general deterrence, specific deterrence and denunciation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson QC | Office of Public Prosecutions |
| For the Accused | Mr C Mandy SC with Ms S Lenthall | Emma Turnbull Lawyers |
HIS HONOUR:
Joseph McDonald. You have pleaded guilty to the child homicide of your infant son, Lucas McDonald on 29 October 2019. Lucas died as a result of catastrophic head injuries which you inflicted on him five days earlier on 24 October. He was then 53 days old.
At the time of the offence you were 22 years of age. You had been in a relationship with your partner, Samantha, for a period of approximately four and a half years. Samantha and you had an older son, Oliver, who was then two years of age. The four of you were living together as a family in a house in Elizabeth Street, Benalla.
On the morning of Thursday 24 October, Samantha, you and the two children drove to Wangaratta to attend an appointment at Gateway Health in order for Lucas to have the standard check-up and immunisations that were due six weeks after his birth. The doctor, who examined Lucas, noted that he was in good health and that there were no bruises or other signs of injury.
After the attending appointment, your family returned to Benalla. On arrival, Samantha took Oliver into the house and you carried Lucas inside. Samantha turned on the television set in the lounge room for Oliver to watch, then she went into the kitchen to tidy up. You carried Lucas into the nursery in order to change his clothes. At that time, Samantha could hear Lucas ‘sooking,’ but he was not crying. You then took Lucas into the lounge room.
While Samantha was cleaning dishes in the kitchen, she heard a high-pitched cry, which was unlike any noise that she had previously heard Lucas make. She called out to you, ‘Is that Lucas?’ to which you replied, ‘Yep, I’m just swaddling him’. At that point, Samantha thought that Lucas’ cry might have been a reaction to the vaccination needles he had received at the clinic on that day.
It is the prosecution case that, at that point, you had violently shaken Lucas, and subjected him to what is described as blunt force trauma to the head. That is, you had either struck him directly to the head or you had caused his head to strike another hard surface. As the circumstances which I shall now describe disclose, those actions by you caused Lucas to suffer a fatal head injury which resulted in his death in hospital five days later.
However, at the time, there was nothing that alerted Samantha to suspect that you had injured Lucas. She checked on Lucas while she was cleaning the kitchen. She noticed he was in his rocker, while you were rocking him, and at the same time playing PlayStation. Samantha’s mother Sharon and her sister Dyleana arrived between 12:30 pm and 1:00 pm and stayed for about 20 to 30 minutes while they had lunch. Before she left, Dyleana went into the lounge room to see Lucas. He was grizzling as if he was in pain, and his eyes were closed. You were still playing PlayStation with one hand on the controller and one hand on Lucas’ rocker. Dyleana soothed Lucas by rubbing his feet.
After Sharon and Dyleana left, Samantha heated a bottle of milk for Lucas and asked you to feed him. When you tried to do so, Lucas would not open his mouth. Samantha used her finger to try to open his mouth, but was unable to do so. She observed that he was not focusing, he was looking upward and his eyes were dazed. She took Lucas from you and cuddled him, and she noticed that his feet were shaking a bit and he still was not focusing. Samantha put him back in the rocker and tried to feed him, but without success. During that time, Lucas was grizzling but not crying.
Samantha became concerned as to Lucas’ condition, and so she telephoned Benalla Health at 3:30 pm. She described Lucas’s symptoms to the midwife, who advised her that Lucas might have been traumatised by the immunisations he had received, and that Samantha should try to use a syringe to feed him. When Samantha tried that technique, Lucas drank a small amount of milk, but most of it drizzled down the side of his mouth. He began moving his arms continuously in a strange way, as if he was punching the air. His eyes were flickering and he could not focus.
As a result, Samantha telephoned the paediatric nurse at NorthEast Health in Wangaratta, requesting advice. While she was speaking to the nurse, you carried Lucas into the kitchen. Lucas was screaming, and he sounded particularly upset. Samantha described the symptoms that she observed to the nurse. The nurse advised Samantha to give Lucas some paracetamol and to try to feed him again. She told Samantha that if Lucas refused to feed and did not have a wet nappy, she should take him to the nearest Urgent Care Centre.
Samantha then left Lucas with you and went to the chemist where she purchased some items, including Panadol. When she returned, you were holding Lucas, who was still making strange arm movements. She gave him Panadol and he settled. His eyes stopped flickering and he stared. Lucas slept for a short time, but then woke and seemed quite dazed. Samantha continued to try to feed him, but without success.
For the rest of the afternoon and evening, Samantha looked after Lucas. You fed Oliver, put him to bed, and then continued to play PlayStation before falling asleep in the lounge room. In the meantime, Lucas remained unsettled during the night, sleeping for periods of only 20 minutes. Samantha continued to check him and tried to feed him with a syringe.
On the following morning, Lucas had not improved and he was still not feeding. Samantha left to go to the supermarket to purchase food. At that time, Lucas was in his cot, lying on his side and staring at her. When Samantha attended at the supermarket, she met some friends, who advised her that she should take Lucas to the Benalla Health Emergency Department. On returning home, Samantha followed that advice and drove Lucas to the Benalla Health Emergency Department, arriving there at about 10:50 am.
The doctor, who attended Lucas, noted that he was critically unwell, and that he needed immediate transfer to a hospital that was equipped with specialist paediatric support. In the meantime, treatment was commenced based on a possible diagnosis of sepsis. On examination, Lucas was observed to be pale, floppy and lethargic. He had high blood pressure, and the anterior fontanelle (the space between the cranial bones at the front of his head) were firm which suggested increased pressure within the skull. Other signs were elicited which suggested that he had sustained some problem with his brain.
Accordingly, Lucas was transferred by ambulance to the NorthEast Health Wangaratta Emergency Department, where he arrived at 11:45 am. Lucas was attended by a consultant paediatrician, who noted that although his eyes were open, he was poorly responsive and flat, and he required resuscitation. Lucas displayed minimal response to attempts to gain intravenous access, which further indicated that his conscious state was reduced. The doctor also noted that he had a bruise underneath and to the left of his left eye. It was determined that Lucas needed to be removed to a tertiary paediatric centre. As a result, he was flown by air ambulance to the Monash Children’s Hospital in Clayton where he arrived at 8:30 pm.
On arrival at the hospital, Lucas was unconscious and sedated. Examination revealed multiple retinal haemorrhages in several layers of his right eye with non-optic swelling, that was consistent with injury that was not the result of an accident. Radiological examination of the brain revealed what in lay man’s terms may be described as a number of large haemorrhages in different layers of the brain and in the fibres that surround and protect the brain. In technical terms, they consisted of multi-foci and confluent areas of intraparenchymal haemorrhage with a number of subdural haemorrhages. In addition, there was a large haematoma in the lower thoracic and lumbar spine. Self-evidently, those findings were typical of injury that had not been the result of an accident.
On the next morning, Dr Lisa Barrow, a Forensic Consultant Paediatrician, commenced an assessment of Lucas. Before doing so, she obtained a history from Samantha and you. You told her that when you carried Lucas from the car to inside the house on the previous Thursday, you had noticed that he was pale, limp and breathing very quietly with periodic gasps. You said that the only occasion, on which you had been at all rough with Lucas, was when he was about two or three weeks old, when you had accidentally bumped his head on a swing seat frame. Significantly, you did not tell Dr Barrow that, on the previous Thursday, you had violently shaken Lucas and struck him on the head, or caused his head to strike another hard surface.
During the days that followed, Lucas underwent a number of tests. On 29 October, a brain perfusion scan revealed that there was no evidence of brain activity. Accordingly, Lucas was pronounced to be deceased. The date and time of Lucas’ death was recorded as at 3:55 pm on that date, 29 October 2019.
On the following day, 30 October, staff from the hospital explained to Samantha and to you, and other members of your family, that in their opinion, the injuries sustained by Lucas were not accidental. After the meeting, Samantha and you and others went outside. Samantha spoke to you when you were both apart from the other members of the family. She asked you what exactly had happened when she heard Lucas cry out. You responded that you had swaddled Lucas and put him on your shoulder, and Lucas would not stop crying. You said that you became frustrated and you pushed too hard on the back of Lucas’s brain stem, and that was when Lucas cried out. Upon hearing that explanation, Samantha broke down in tears. She told you that you had killed Lucas, and that you needed to tell your father.
A short time later, Samantha entered the hospital and spoke to your father. In the meantime, you ran away from the hospital. You eventually arrived at a paddock in Notting Hill, where you hid for two days, sleeping in a horse shed. On Friday, 1 November, you were located there by the owner of the property, Patrick Reid. You told him that you had been bashed and robbed and thrown out of your vehicle. Mr Reid believed what you told him and offered you assistance. You asked him to drive you to Wallan where you said you had friends. On arriving there, you attended the house of two people who you did not know. Eventually, at your request, they drove you to another location in Wallan, where they left you. You then remained there overnight.
On the following day, in the afternoon, you telephoned your mother. Having spoken to her, you contacted the police investigators through a solicitor, and agreed to attend at the Melbourne West police station. Accordingly, at 6:30 pm, you arrived at that police station, where you were arrested. A record of interview was conducted with you, in which you gave a ‘no comment’ response to each of the questions asked of you. You were then charged with murder and were remanded in custody.
Dr Lisa Barrow has provided a detailed report as to the injuries that were sustained by Lucas. As already mentioned, he was found to have multiple haemorrhages in different areas of the brain and in different compartments surrounding the brain. The location and extent of those haemorrhages demonstrated that Lucas had sustained traumatic brain injury, almost certainly involving acceleration and deceleration and rotational forces. The extent of the haemorrhages, the presence of associated swelling of the brain, and the absence of any medical cause for the haemorrhages and swelling, all indicated that the injuries were the result of a very recent traumatic event such as shaking. The spinal haemorrhages were likely to have been caused by blunt trauma to the spine. The retinal haemorrhages in the right eye were probably the result of non-accidental trauma, such as acceleration and deceleration injury with blunt impact. Not surprisingly, the head injuries suffered by Lucas were considered to be the cause of his death.
The findings by Dr Barrow were supported by the report of the forensic pathologist, Dr Matthew Lynch, who performed a post-mortem examination on 31 October. Relevantly, Dr Lynch, who conducted a full autopsy, also detected an area of bruising measuring 4 cm x 1.8 cm on the skull. He considered that the bleeding inside the skull (the intracranial bleeding) was typical of that observed as a result of blunt force head injury. Based on that evidence, I am satisfied, beyond reasonable doubt, that the head injury inflicted by you on Lucas included injury that was the result of blunt force trauma, that is, either you striking Lucas’ head, or you forcing Lucas’ head to forcefully strike a hard object.
As I mentioned, you were charged with the murder of Lucas. You elected to go to trial without a committal proceeding, and you were committed for trial on 24 August. In the meantime, the matter resolved, and on 30 October last, you pleaded guilty before the Judicial Registrar to the charge of child homicide.
The offence of child homicide, to which you have pleaded guilty, is, of itself, a serious offence, the maximum sentence for which, at that time, was 20 years’ imprisonment. It involved you causing the death of your baby son, Lucas, by an unlawful and dangerous act, that is, by a deliberate and intentional act or acts, which a reasonable person, in the same position as yourself, would have realised exposed Lucas to an appreciable risk of serious injury.
While the evidence does not reveal the precise nature of those acts, it is clear that they involved the forceful shaking of Lucas together with blunt impacts to his head and spine. Those actions, whatever their nature, were unlawful. They were not part of ordinary parental care, but rather constituted assaults committed by you to vent your anger and frustration. They were plainly dangerous in the manner that I have just defined, namely, they were actions which a reasonable person in your position would have understood involved an appreciable risk of injury to Lucas, as indeed they did with tragic consequences.
At the time of his death, Lucas, your infant son, was totally vulnerable and dependent on you for his safety and wellbeing. He deserved to be treated with the tenderness, love and care that any baby should receive. Instead, by your actions, you took his life from him, and, by doing so, you have inflicted irreparable pain and grief on those who loved him, and in particular, on his mother and your partner, Samantha.
The law regards all human life as unique and sacrosanct. However, the life of an infant or a young child is especially precious, because children, like Lucas, are so vulnerable and defenceless. The ordinary natural instinct of any human being is to feel tenderness and protectiveness towards an infant or a young child. The assault, that you inflicted on Lucas, by which you brought his life so prematurely to an end, contravened the fundamental values of our society.
It is evident that you performed the actions by which you caused Lucas’s death in a fit of anger. You made an admission to that effect to Samantha at the hospital. It is clear from Samantha’s statements to the police, from the statements of other witnesses, and from the report of the psychologist, Patrick Newton, that you have had longstanding anger management problems. As I shall later discuss, those problems were exacerbated by your addiction to PlayStation, and by your significant abuse of the substance cannabis. Those two factors do not excuse or mitigate your offence at all. Rather, they provide an explanation for what you did. In short, your actions, which resulted in Lucas’ death, occurred in a burst of anger that was inflamed by your indulgence in those two addictions.
Your offending, and your culpability for it, were aggravated by your continued failure to disclose to Samantha, and to the medical staff who were treating Lucas, how you had injured him. During the period of five days, in which numerous tests and examinations were undertaken on Lucas before he died, you failed to put his welfare and survival before your own desire to conceal your guilt over what you had done to him. While there is no evidence that your failure, in that respect, caused further harm to Lucas, or diminished his prospects of survival, your conduct bespoke a shameful degree of selfishness and callousness on your part.
In assessing the gravity of your offending, and your moral culpability for it, I take into account that your actions were not premeditated, but were the product of a spontaneous outburst of anger on your part. Further, those actions were of short duration. The nature and degree of violence engaged in by you in this case, while entirely unacceptable and inexcusable, was not as serious or severe as has occurred in some of the cases, involving the deaths of young children, which have come before the Court in recent decades.
The direct and primary victim of your crime was baby Lucas. Due to your actions, he had less than eight weeks of life, the last five days of which were in a sadly depleted state. At the time of the offence, Lucas had the whole of his life before him, growing up surrounded by the love and care of his parents, brother and family. As a result of your actions, Lucas will never grow out of childhood, he will never experience his teenage years, or mature into adulthood. Your senseless and irresponsible act of angry violence 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 who will continue to suffer, very gravely as a result of it. I have listened to and read the victim impact statements of Samantha, of Lucas’s grandmother, Sharon Mills, of Samantha’s sister, Dyleana, and of Samantha’s close friend, Madeleine Newell. Each of those statements portray, in the most moving terms, the great depth of the pain and grief that they have suffered as a result of your offence. The lives of each of those persons have been, and always will be, deeply affected by the tragedy that you have brought about.
I turn then to your personal circumstances. You were born and raised, with your brother, in Benalla. You had the benefit of a stable, settled and happy childhood, and you come from a good family. You attended Benalla East Primary School to grade 6, and then Benalla College, where you completed Year 11 level. Despite that achievement, you were not particularly academically oriented. On leaving school, you commenced employment with Safeway, at first on a part-time basis, before graduating to work there full-time. After you ceased employment at the supermarket at the age of 20, you obtained employment at a local timber mill, D & R Henderson, as a shift worker. At the time of Lucas’s death, you were working at the sawmill on the late shift, generally commencing at 4:00 pm and finishing work between midnight and 2:00 am. Apparently you enjoyed your work and were earning sufficient wages to provide for your young family.
You commenced a relationship with Samantha, who you had known at high school, when you were 18 years of age. Until the incident with which this case is concerned, you both enjoyed a happy and, it would seem, reasonably stable relationship. At the age of 20 years, you became a father, when Samantha gave birth to your first son, Oliver. Despite your young age, you adapted reasonably well to the challenges of being a parent at that stage. However, it would seem from what you have told Mr Newton that you found yourself particularly challenged by the birth of Lucas. Samantha and you had not planned, at that point, to have a second child. While his birth was a matter of great happiness to Samantha, you experienced difficulty adjusting to the additional pressures and stresses that were invariably involved in raising an infant in such circumstances.
As I have mentioned, your solicitors arranged for you to be assessed by Mr Patrick Newton, a clinical forensic psychologist, on 19 November last while you were in custody. Mr Newton’s report, which was tendered on your plea, provides an important insight into the difficulties that you have had in managing the problem that you have with anger, which deteriorated after the birth of Lucas. Mr Newton noted that you have significant difficulties controlling your anger, and that you do not have well developed conflict management skills. You lack insight into your anger as it develops, so that you are unable to identify signs that you are becoming irritated. As a result, you have experienced anger as a welling up within you to the point at which it is difficult to control.
Mr Newton noted that your anger management problems were exacerbated by your addiction to cannabis and to video games. You commenced to use cannabis at about the age of 17 years. Your use of that drug steadily increased, so that by the age of 19 years, you were using significant quantities of it on a daily basis. Mr Newton expressed the opinion that your cannabis use was sufficiently severe to meet the diagnostic criteria for a moderate cannabis-use disorder. In addition, you also engaged in compulsive video gaming. You would spend between six and ten hours each day engrossed in that activity, which compromised your ability to focus on your family relationships and responsibilities. You would become readily irate if you lost in a video game, or if other circumstances, such as family responsibilities, interfered with your ability to participate in it. Mr Newton considered that you fulfil the diagnostic criteria for an internet gaming disorder.
On your plea, your counsel, Mr Mandy SC, who appeared with Ms Lenthall, correctly accepted that the gravity of the offending, and your moral culpability for it, was high. On the other hand, there are a number of mitigating circumstances which Mr Mandy outlined to me in a helpful plea on your behalf.
The first mitigating circumstance is your plea of guilty, which I accept was made at an early stage in the proceeding. Your guilty plea is relevant, as a mitigating circumstance, for a number of reasons. First and foremost, it is of significant utilitarian value. By pleading guilty, you have spared Samantha, her family, your family, and all those who loved Lucas, the pain and trauma of a contested trial. It has also enabled the case to be disposed of significantly earlier than would otherwise have been the case, particularly in light of the difficulties that might have been involved in conducting a jury trial in the context of the current pandemic. By enabling the proceeding to be finalised in such an expeditious manner, you have assisted those, who have suffered so much from the loss of Lucas, to obtain at least a degree of closure.
In addition, your plea of guilty involves the public acceptance by you of your responsibility for what you have done, and the recognition by you that your unlawful and dangerous act caused the death of Lucas. In that way, it has facilitated the course of justice.
You have one previous conviction, for a driving offence, which is irrelevant to the issues in this case. Accordingly, I regard you as a person who comes for sentence as having no relevant previous convictions. On your plea, I received a number of character references, that were tendered on your behalf, that have been provided by your parents, other members of your family, and close family friends. Each of them have attested to the fact that, in their experience of you, they have found you to be a kind and caring person who ordinarily avoids conflict. Certainly, that side of you is quite different to your conduct during your relationship with Samantha, especially after the birth of Lucas. I accept that those references demonstrate that there is a kind and caring side to your character, particularly when you are not placed in a situation in which your anger might be provoked.
The question of your remorse is somewhat complex. Each of the character references state that you have expressed your regret for what you have done. You have also expressed remorse to your counsel and to Mr Newton. I accept, on the balance of probabilities, that you do experience some remorse, not just for the predicament in which you have placed yourself, but for the loss of Lucas, and for the fact that it was your violent actions that caused his death. I would expect that as you mature and gain better insight into your anger management issues, so too will the level and depth of your remorse develop.
At the time of the offence, you were young. Ordinarily, the weight that is accorded to an offender’s youth, as a mitigating circumstance, reduces with the seriousness of the offence. Nevertheless, I consider that your youth is relevant to an assessment of your moral culpability. It is clear that at the time of the offence, you were young, immature and not coping with the pressures and demands of raising two very young children. I emphasise that your youth does not, in any way, excuse your offending, nor does it reduce the objective gravity of it. However, in view of your youth and immaturity at the time of the offence, your moral culpability is less than it would be if, at the time of the offence, you were a man of more mature years.
I also take into account, as a mitigating circumstance, the fact that your time in custody has been, and will continue to be, quite difficult for you. In view of the nature of your offence, you will be vulnerable to retribution from fellow prisoners, who might be minded to take what they consider to be the law into their own hands. Further, during the last nine months, due to the protocols that have been necessitated by the current coronavirus pandemic, you have not been able to have personal visits from your family and friends. Your contact with them has been confined to remote meetings by Zoom and other mediums. In addition, the nature and range of programs and other activities available to you have been limited. While, at the present time, the incidence of the virus in the community has reduced significantly, I also accept that there will be a risk, at least in the next one or two years, that there might be another outbreak of it, as a result of which you and your fellow prisoners will be subjected to further restrictive protocols in order to prevent the spread of the virus in the prison system. In that way, it is quite possible that your term of imprisonment, at least in the next 12 to 24 months, may be more onerous than otherwise.
In that respect, I note that Mr Newton has stated that you have suffered a significant degree of anxiety and depression resulting from your offending and from your circumstances in custody. You have related to Mr Newton that you experience regular nightmares in which you relive your offending, that you feel increasingly alienated from mainstream society, and that you are anxious about the censure and treatment which you expect to receive from others for it. I note that in that respect, Mr Newton has diagnosed you to be suffering from an adjustment disorder with mixed anxiety and depressed mood.
An assessment of your prospects of rehabilitation is not straightforward. It seems clear from the report of Mr Newton that your successful rehabilitation will depend significantly, if not almost wholly, on your ability to acknowledge and deal with your anger management issues, and to obtain treatment for them, as well as for your addictions to cannabis and to video gaming. In his report, Mr Newton expressed that view in the following terms:
At the risk of stating the obvious, the more Mr McDonald can attend to the issues identified in regard to his substance use and his anger management, and the more he can be encouraged to participate in pro-social activities such as education and job training, the more optimistic I would be that he would be able to return to productive engagement with mainstream society.
In that context, it is at least promising that you have acknowledged, quite candidly, to Mr Newton your anger management issues, and your related addictions to cannabis and video gaming. It is important that the authorities, who are responsible for your custody during your term of imprisonment, make available to you, and that you participate in, all relevant programs and courses that might assist you to deal with those problems. It is clear that you need to undergo some therapy or counselling to enable you to fully understand the process by which anger builds up within you, and that you learn the steps that you need to take to address that issue. It is not only in your interest, but very much in the interests of the community, that you undertake those courses and programs, in order that you may be safely returned to society on the completion of your sentence.
Those then are the mitigating factors which are to be taken into account in your favour.
The principles, which apply to the determination of your sentence, are well established. It is necessary that the sentence, which I impose on you, be such as to adequately express the condemnation by this Court, and by the community, of your wrongdoing, and to vindicate the precious and unique value of the life of each infant and child in our community. In addition, the sentence must be of sufficient severity to serve as a general deterrent to others, by constituting a clear message to any person, who might be minded to engage in violence against an infant or young child, that such conduct will be met with a severe sentence, involving the deprivation of the offender’s right to be at liberty in society for a substantial period of time.
In addition, it is important that the sentence, which I impose on you, is sufficient to ensure that you yourself learn that any further act of violence of the kind in which you engaged in this case, will be met with severe consequences. In that way, the sentence will serve the purpose of instilling into you some understanding of, and insight into, the need for you to learn to control your anger, and to exercise restraint when your emotions are challenged.
In determining the sentence that I am to impose on you, I have had regard to current sentencing practices. In that respect, I have been assisted by the sentencing decisions, particularly in recent child homicide cases, to which both the prosecutor, Mr Gibson QC, and your counsel, Mr Mandy SC, referred me. In reviewing those decisions, I bear in mind that no two cases are alike, either in terms of the nature of the offending, or in respect of the various mitigating circumstances that may be relevant to the particular offender. Nevertheless, the decisions to which I have been referred have, in a broad sense, assisted to indicate the current sentencing practices that are relevant in respect of the offence committed by you. As the High Court has emphasised, current sentencing practices are but one factor out of many which are relevant to the determination of your sentence.[1]
[1]DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
Mr Mandy submitted that the sentence that I impose should include a parole period which is of sufficient length to enable you to have the advantage of treatment and programs, for your anger management problem, which might not be available to you while you are in custody. I consider that there is some force in that proposition. Nevertheless, at the same time, it is necessary that the non-parole period be of sufficient length to properly vindicate the sentencing purposes to which I have already referred, namely general deterrence, specific deterrence and denunciation. It will be important that, when you are granted parole, and while you are under supervision, arrangements are made for you to undergo treatment and counselling of the nature referred to by Mr Newton in his report.
In any case, but particularly in a case such as this, the determination of the appropriate sentence to be imposed is not simple. On the one hand, I am required to take into account the seriousness of the offence that you have committed, and your moral culpability for it, and the need to give appropriate weight to the sentencing purposes to which I have referred. On the other hand, it is necessary that I also take into account, and give appropriate weight to, the mitigating circumstances which I have outlined.
Taking those matters into account, I sentence you as follows. For the child homicide of Lucas McDonald, I sentence you to 9 years’ imprisonment. I fix a minimum non-parole period of 6 years and 8 months. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 410 days (including today’s date) be reckoned as served under the sentence, and I shall cause a declaration to that effect to be noted in the records of the Court.
As I have already stated, I have taken into account, as a mitigating circumstance in your favour, the fact that you have pleaded guilty. Section 6AAA of the Sentencing Act requires me to state the sentence and the non-parole period which I would have imposed but for your plea of guilty. For the purpose of that provision, but for your plea of guilty, I would have sentenced you to 11 years’ imprisonment with a non-parole period of 9 years.
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