Director of Public Prosecutions v Pallant
[2024] VSC 397
•15 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0189
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BRENDAN PALLANT | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February, 25 March and 24 May 2024 |
DATE OF SENTENCE: | 15 July 2024 |
CASE MAY BE CITED AS: | DPP v Pallant |
MEDIUM NEUTRAL CITATION: | [2024] VSC 397 |
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CRIMINAL LAW – Sentence – Murder of 2-year old child – Conviction after trial – Denial of responsibility – Prior incidents of offender harming child – Relevant prior criminal history – Burdensome custodial circumstances – Standard sentence offence – Relevance of delay, rehabilitation, just punishment, denunciation, general and specific deterrence and community protection – Sentenced to 32 years’ imprisonment with a non-parole period of 25 years – Sentencing Act 1991 (Vic) ss 5, 5A, 5B, 11A, 18(4) – LN v R [2020] NSWCCA 131 – DPP v McMaster (2008) 19 VR 191 – Bugmy v The Queen (2013) 249 CLR 571 – R v Verdins (2007) 16 VR 269 –Brown v The Queen (2020) 62 VR 491 – Yat v The King [2024] VSCA 93 – DPP v Lindsey (Sentence) [2018] VSC 239 – DPP v Lindemann [2024] VSC 220.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC with Mr A Sprague | Office of Public Prosecutions |
| For the Accused | Mr R Nathwani SC with Mr D Dann KC with | Victorian Aboriginal Legal Service SLKQ Lawyers |
HER HONOUR:
Introduction
Brendan Pallant, on 18 July 2023, following a 25-day trial,[1] you were found guilty by a jury of having murdered Jaidyn Gomes-Sebastiao (‘Jaidyn’) on 2 September 2019 at Langwarrin.
[1]As well as an earlier trial in which the jury was discharged without verdict.
The maximum penalty for murder is life imprisonment and the standard sentence for murder is 25 years.[2] I will explain what that means a little later in this sentence.
[2]Pursuant to s 5(2G) of the Sentencing Act 1991 (Vic), murder is a Category 1 offence, and a period of imprisonment must be imposed. See also s 5(2).
Documents received on the plea hearing
The following documents were tendered at the plea hearing.
On behalf of the Crown:[3]
[3]At the plea hearing on 23 February 2024, the Crown produced a folder containing the materials upon which it intended to rely for the plea. In addition to the materials that were ultimately tendered at the plea, the Crown prepared a table summarising Mr Pallant’s relevant prior convictions, and attached the relevant police and LEAP summaries of the prior offending. In addition, the Crown also provided copies of the cases of DPP v Lindsey (Sentence) [2018] VSC 239 and LN v R [2020] NSWCCA 131.
(a) Prosecution summary of trial evidence for plea hearing;[4]
[4]Dated 20 February 2024 and tendered as Plea Exhibit P1.
(b) A bundle of Victim Impact Statements (‘VIS’);[5]
(c) Prosecution submissions on sentence and table of sentences imposed in standard sentence murder cases;[6] and
(d) Email dated 19 June 2024 from the Crown confirming some brief final submissions.[7]
[5]Comprising the VIS of Stacie Saggers (13 November 2023), Sandra Saggers (13 December 2022), and Jeanette Fuller (13 December 2022): Plea Exhibit P2.
[6]Submissions dated 20 February 2024: Plea Exhibit P3.
[7]Plea Exhibit P4. The email confirmed the Crown’s position that they otherwise did not seek to be heard following provision of further affidavit material to the Court.
On your behalf:
(a) Defence submissions on plea;[8]
[8]Dated 8 March 2024: Plea Exhibit D1.
(b) Affidavit of Brendan Pallant;[9]
[9]Sworn 7 March 2024: Plea Exhibit D2.
(c) The psychological and psychiatric reports of Simon Candlish,[10] Dr Aaron Cunningham,[11] and Dr Nicholas Ingram;[12]
[10]Dated 20 December 2023: Plea Exhibit D3.
[11]Dated 23 March 2016: Plea Exhibit D4.
[12]Dated 25 January 2013: Plea Exhibit D5.
(d) A bundle of character references;[13]
[13]From Donna Williams (dated 10 March 2024), Matilda Pallant (12 March 2024), and Samuel Pallant (undated): Plea Exhibit D6.
(e) Medical records from St Vincent’s Hospital;[14]
[14]Regarding emergency and outpatient episodes of Brendan Pallant between September 2017 and January 2024: Plea Exhibit D7.
(f) Medical records from Justice Health;[15]
[15]Plea Exhibit D8.
(g) Orygen Youth Health letter dated 15 December 2010;[16]
[16]Plea Exhibit D9.
(h) Psychological report of Warren Simmons dated 23 April 2010;[17]
(i) Defence supplementary submissions dated 20 June 2024 (‘Supplementary Defence Submissions’);[18] and
(j) Audio recording of call made by Brendan Pallant to the Ombudsman.[19]
[17]Plea Exhibit D10. Plea Exhibits D9 and D10 were tendered at a further mention in the matter on Friday 24 May 2024 (Mr Pallant declined to attend that mention).
[18]Plea Exhibit D11.
[19]Plea Exhibit D12 (Audio recording of phone call between Brendan Pallant and Claudia McKeough from the Victorian Ombudsman). Plea Exhibits D11 and D12 were marked as exhibits once they were filed and after the conclusion of oral submissions.
On behalf of Justice Health, who provide medical and psychiatric care to prisoners:
(a) Affidavit of Jackie Ashmore (Clinical Director, Adult Health Services, Justice Health) dated 6 May 2024.[20]
[20]Plea Exhibit C1.
On behalf of Corrections Victoria:
(a) Affidavit of Kerstin Julia Hinrichsen (Acting Assistant Commissioner, Sentence Management Division, Corrections Victoria) dated 5 June 2024.[21]
[21]Plea Exhibit C2
Factual basis of sentencing
The Crown submitted that sentencing should proceed on the basis that the jury verdict is consistent with the facts as outlined in their written plea opening[22] and the case put to the jury in closing. That case alleged the following key facts:
[22]Plea Exhibit P1.
(a) On 2 September 2019, you entered Jaidyn’s bedroom sometime between 12:26pm and about 2:45pm whilst Jaidyn’s mother, Stacie Saggers (‘Stacie’) was at work, having been entrusted to care for him and his brother Chayse in Stacie’s absence.
(b) You severely assaulted Jaidyn, including by grabbing his hair, leading to various bruises and abrasions about his body and face. You struck Jaidyn’s head with a metal-framed table[23] while his head was against a hard surface such as the floor or against a wall. The table was wielded with moderate to severe force and resulted in a depressed fracture to Jaidyn’s skull and an associated ‘significant brain injury.’[24]
[23]Particularly the leg and rectangular plastic foot of the table.
[24]Plea Exhibit P1 (Executive Summary) 1.
(c) The fatal head injuries were caused by the metal table being wielded into Jaidyn’s head, not by him being thrown against it. The shape of the depressed fracture was consistent with the shape and size of the foot of the table, and the radiating fracture could only have been part of the one application of force if Jaidyn was up against a hard surface so his head couldn’t absorb the impact.
(d) The assault occurred due to anger, frustration and a loss of self-control towards Jaidyn in the context of you being upset at the prospect of losing custody of your own children due to court proceedings being conducted that day.[25]
[25]Plea Exhibit P1 (Executive Summary) 2.
(e) You must have known or realised that Jaidyn was seriously injured as a result of the assault, as he would not have been in a ‘normal’ state afterwards.
(f) Stacie arrived home from work at about 2.45pm, and after a period of about 45 minutes when Jaidyn was produced by you from his bedroom, his condition became apparent to Stacie.[26]
(g) Multiple injuries were sustained by Jaidyn on multiple planes, indicating multiple applications of force.[27]
(h) At the time you struck Jaidyn with the table, you intended to at least cause a really serious injury.
[26]Plea Exhibit P1 (Executive Summary) 1-2.
[27]Plea Exhibit P1 [83(f)].
The Crown further submitted that you should be sentenced on the basis that you had assaulted Jaidyn on the two previous occasions alleged as the two ‘bookcase incidents’.[28]
[28]This was said to include (based on photographic and other evidence) a forceful blow or punch to Jaidyn’s face and eye on the evening of 1 September 2019.
On your behalf, it was submitted that you maintain your innocence and therefore dispute the jury verdict. It was further argued that the Court could not be satisfied beyond reasonable doubt as to the exact nature and extent of the assault on Jaidyn, your appreciation of the seriousness of what had occurred, and whether there were prior assaults (the two bookcase incidents).
It was argued on your behalf that the medical evidence led at trial could not establish beyond reasonable doubt:[29]
[29]Plea Exhibit D1, 17 [44].
(a) That there were multiple applications of force to Jaidyn during the fatal assault on him on 2 September 2019 and that you inflicted other non-fatal injuries;
(b) The duration of the assault, other than it occurring during a short but profound period of frustration between 12.26pm and 2.45pm;
(c) That you appreciated Jaidyn’s perilous state following the fatal blow (it was put on your behalf that just because Dr Burke said Jaidyn would not have been ‘normal’ after the fatal blow,[30] this did not mean you had that appreciation); and
(d) As an adjunct to the argument that you may not have appreciated the effect of your actions on Jaidyn, it was submitted that the Court could not find adversely to you that you failed to seek immediate medical assistance after inflicting the fatal injury.
[30](Referring to Dr Burke’s recorded evidence in this regard (‘RT’) 1428).
Sequence of events leading to Jaidyn’s death
The factual background to your offence can be gleaned from the Prosecution Summary of Trial Evidence for Plea Hearing and from the evidence adduced at trial. When you met Stacie, you were aged 32 and Stacie was aged 34. Jaidyn and his older brother Chayse were the children of Stacie and Christopher Gomes-Sebastiao (‘Christopher’). Stacie, Christopher and their two sons resided in Queensland between 2015 and late 2018. Unfortunately, Christopher was killed in a motorcycle accident in November 2018, so Stacie relocated back to Victoria with Chayse and Jaidyn in December of that year. In early 2019, Stacie and the two boys began living in a rental property at 56 Potts Road Langwarrin (‘the Potts Road residence‘). At the time of his death on 2 September 2019, Jaidyn was 2 years and 68 days old and Chayse was 3 years and eight months old.
Stacie had two other sons from earlier relationships: Joshua, aged 16, who lived with Stacie’s parents, and Finn, aged 6 who lived with his father, Paul McAllister (‘Paul’). The living arrangements for Joshua and Finn had been arrived at after child protection intervention by the Department of Health and Human Services (‘DHHS‘ or ‘the Department’).[31] That intervention was due to Stacie’s problematic behaviour including ‘ice’ (methamphetamine) use and mental health problems since her teenage years, and troubled relationships and occasional homelessness in her early adult life.
[31]Predecessor in title to the current Department of Families, Fairness and Housing.
Although Stacie continued to abuse ice when in Queensland during her marriage to Christopher, she managed to start up her own cleaning business, ‘Little Miss Sparkles’ at that time and her parenting of Chayse and Jaidyn was not subject to adverse findings by Queensland child protective services.
When Stacie returned to Victoria following Christopher’s death, she struggled to cope with her grief and with the demands of parenting and providing for her two youngest sons. She was smoking ice and mixing with other users. She resumed contact with Finn’s father Paul and used drugs with him on occasions. While she had a childcare placement for Jaidyn she became unreliable about collecting him on time and by August 2019 had lost that placement. However, despite Stacie’s past and ongoing lifestyle issues, in the 16 years over which she was a mother, she was never known to be violent towards any of her children.[32]
[32]See, eg, evidence given at trial by Sandra Saggers and Emma Simpson: RT 802 (Sandra Saggers) and RT 781 (Emma Simpson). No witness said otherwise.
Jaidyn was an affectionate toddler but he was also regarded as clingy and demanding of his mother’s attention. Stacie described him as a ‘mummy’s boy.’ He could not talk and was a late walker and was slightly developmentally delayed. Chistopher’s mother, Jeanette Fuller, would take Chayse, but not Jaidyn, for overnight stays. Few people were willing to look after Jaidyn. When Stacie met you, Mr Pallant, she was an emotionally needy woman battling the challenge of being recently widowed and trying to parent her two younger sons on her own.
You were introduced to Stacie through a mutual connection, Misty Doyle (‘Misty’), who was the ex-partner of your cousin.[33] You had been staying with Misty in the Frankston area. After being introduced to Stacie and helping her shift some furniture, you moved in to her home on 8 August 2019 and commenced an intimate relationship with her. The relationship persisted for 25 days until you were arrested on the charge of murder on 2 September 2019.
[33]RT 966 (Misty Doyle).
Stacie was living off her parenting pension supplemented by earnings from her cleaning business. She would take online bookings to clean houses in the local area and was generally paid cash for her work. She did not have a driver’s licence which made it difficult for her to get to her cleaning jobs. She relied on friends to drive her or used Uber or other rideshares. At times in the preceding months, Misty had taken Stacie to appointments and either helped her with the cleaning work, or looked after Jaidyn while Stacie worked, but Misty distanced herself when Stacie became unreliable about paying her.
Not long after you moved in with Stacie the pair of you began to use drugs together. It seems you used both ice and cannabis whereas Stacie’s long term preference was to smoke ice.
Stacie began to ask you to look after Chayse and Jaidyn while she went shopping or to one of her cleaning jobs. She knew that you had your own three children and she trusted you to mind her two boys.
You had previously been married to LM, the mother of your three children, but by 2017 that relationship had broken down. The breakdown of that relationship had been acrimonious, and you were convicted of assaulting her and breaching family violence orders, for which you were sentenced to a term of imprisonment in 2018.
By 2019, your three children were subject to child protection orders and had been placed in foster care. You were not permitted to have unsupervised contact with them under those orders.[34]
[34]Mr Pallant was not permitted to have custody of his children in August and September 2018, and DHHS staff were not aware he was residing with Stacie and her two children.
In the lead up to the murder of Jaidyn, DHHS had taken steps to obtain ‘Care by Secretary’ orders in respect of your three children. The matter had been set down for hearing on Monday 2 September 2019 at the Colac Magistrates’ Court. This was the same day Jaidyn was killed. You were opposed to the Department’s applications in respect of your children and had sought advice about how to avoid the Court making the orders. Your distress over the potential court outcome was relied on by the Crown as a motivating factor for what happened on 2 September 2019.
During the time that you were living with Stacie, Jaidyn suffered some concerning injuries on two occasions when you were left in charge of him. Stacie was confused about these occurrences which coincided with disturbances to some bookcases in Jaidyn’s bedroom. These two earlier episodes were led as tendency evidence relevant to the offending on 2 September 2019.
The chronology of events in the days leading up to Jaidyn’s death was deconstructed before the jury in intricate detail. This included putting before the jury a very large number of text-based electronic communications conducted between yourself and Stacie.[35] Messages between you and/or Stacie and other friends or associates were also tendered and those messages included contacts with drug suppliers. It was apparent from the message threads that both you and Stacie were abusing drugs in late August 2019 and that the relationship between the two of you had become strained.
[35]Including messages sent from various devices between Mr Pallant and Stacie when both were at home at the Potts Road residence.
I will now set out the key features of events between late August 2019 and 2 September 2019, because it helps to explain the tendency evidence that was put before the jury and the circumstances of Jaidyn’s death.
Wednesday 28 to Thursday 29 August 2019
On the evening of either Wednesday 28 or Thursday 29 August 2019, Stacie returned home after performing cleaning work for a client named ‘Jacqui’ in Frankston South. She was gone for about five hours and you babysat her children while she was away. When she returned, Stacie did not go into Jaidyn’s room to check on him as you told her Jaidyn was asleep and not to wake him. The next morning, when she went into his room[36] she saw one of a pair of white cubed bookcases lying on the floor near to Jaidyn. Jaidyn was asleep on the floor without a blanket and had a bruise under his eye. This incident came to be described as ‘the first bookcase incident’. Subsequently,[37] while getting a lift with her former partner, Paul, Stacie told him about the bruise under Jaidyn’s eye, and about the bookcase being on the floor. She raised a concern that you may have hurt Jaidyn. Paul testified that Stacie told him: ‘a bookcase had fallen on Jaidyn, or that Brendan had said that a bookcase had fallen on him. She seemed concerned that perhaps Brendan may have hurt him.’[38]
[36]Jaidyn shared the bedroom with his brother Chayse.
[37]On either Thursday 29 or Friday 30 August 2019.
[38]RT 922 (Paul McAllister).
Friday 30 August 2019
On Friday 30 August 2019, you telephoned a Colac-based DHHS Child Protection worker, Ms N,[39] and requested contact with your children on Father’s Day, Sunday 1 September 2019. You told Ms N that you would attend Colac Magistrates’ Court on Monday 2 September 2019 to oppose the Department’s Care by Secretary application.
[39]Pseudonym for DHHS Child Protection worker.
On the Friday evening, at 7.07pm, Ms N sent a text message to you stating the children’s carer would call you at about 6.00pm on Father’s Day so that telephone contact with your children could occur.
That same evening between 7.22pm and 8.06pm, Stacie walked up to Woolworths in Langwarrin, taking Jaidyn with her in his stroller and leaving Chayse in your care.[40] Upon arriving at Woolworths, she transferred Jaidyn into the child seat of the shopping trolley.[41] At the checkout, Woolworths staff noticed bruising on Jaidyn’s face, including a big bruise near one of his eyes.[42] As the staff members were looking at Jaidyn, Stacie sought to explain that either ‘he pulled the bookcase’ or ‘the bookcase fell on him’.[43] The jury were able to view CCTV visual footage of these interactions.[44]
[40]Trial transcript (‘TT’) 175 (Stacie Saggers).
[41]Trial Exhibit P19 (CCTV footage at Woolworths Langwarrin on Friday 30 August 2019 showing Stacie with Jaidyn).
[42]RT 1014 (Susan O’Brien); RT 1032–3 (Samantha Scannell-Hutchinson).
[43]RT 1016 (Susan O’Brien); RT 1032-3 (Samantha Scannell-Hutchinson).
[44]Trial Exhibit P19.
Saturday 31 August 2019
On the morning of Saturday 31 August 2019, Paul and Finn visited Stacie at the Potts Road residence. While Paul and Finn were outside with Stacie, she asked Paul to look at Jaidyn’s ear. This was in the context of Stacie having previously communicated to Paul about the first bookcase incident. Paul recalled that Stacie said Jaidyn’s ear was bruised or bleeding, and she thought that maybe you had hurt him. Paul was unable to properly observe Jaidyn as he was distracted by keeping an eye on Finn, but noted that Jaidyn’s face looked a little dirty, and his eye seemed a bit puffy.[45] However, he did not recall seeing any cuts or bruises to Jaidyn’s face.[46] Paul recalled telling Stacie, ‘If you think he’s hurting the kids, you need to get him out.’[47]
[45]RT 923–4 (Paul McAllister).
[46]RT 925 (Paul McAllister).
[47]RT 923 (Paul McAllister).
Between 6.03pm and 6.14pm that evening, Stacie took Jaidyn with her to Woolworths in Langwarrin while she did some shopping. This visit to the shops with Jaidyn was also captured on CCTV which was played to the jury.[48]
[48]Trial Exhibit P22 (CCTV footage at Woolworths Langwarrin between 6.03pm to 6.14pm on 31 August 2019 (edited)).
Sunday 1 September 2019
Sunday 1 September 2019 was Father’s Day. You did not manage to speak to your children at 6.00pm as prearranged. Ms N later messaged you to say that the carer had attempted to call you, but the call didn’t go through. At 7.06pm, you messaged a contact, Steven Bourke, stating: ‘I need help writing up a letter for the magistrate at family court tomorrow! I’m stressing out hard about it’.[49]
[49]Trial Exhibit P81 (Pages from extraction report of Brendan Pallant’s mobile phone), row 1493.
That evening, Stacie again needed to go to Woolworths to purchase some items.[50] She attempted to persuade Jeanette Fuller to give her a lift to the shops, pleading that she was scared to walk alone when it was dark outside.[51] Ms Fuller declined to help because she was in pain from dental surgery.[52] Stacie was going to take one of the boys with her to the shops, but you dissuaded her as it was cold and raining.[53] Therefore, Stacie put Jaidyn to bed and left you in charge of both Chayse and Jaidyn before setting out to Woolworths alone.[54] At the time she put Jaidyn to bed, the two white cubed bookcases in the boys’ bedroom were standing upright: one against the wall, and one at the foot of Chayse’s bed.[55]
[50]Trial Exhibit P25 (Woolworths receipt for 1 September 2019 at 7.49pm).
[51]TT 187 (Stacie Saggers).
[52]RT 852–3 (Jeanette Fuller).
[53]TT 188 (Stacie Saggers).
[54]TT 184 (Stacie Saggers).
[55]TT 184 (Stacie Saggers).
Stacie arrived at Woolworths at 7.44pm. Her movements during this visit were also captured on CCTV, which was played to the jury.[56] She returned home from the supermarket at around 8.04pm,[57]and noticed you and Chayse on the couch in the front lounge room. She put the groceries down in the kitchen and went into the boys’ bedroom to check on Jaidyn.[58] She immediately noticed a bookcase lying on the floor, which was the bookcase that had been ‘in the middle of the wall’, on the right-hand side as one entered the room.[59] Jaidyn was on his bed and Stacie noticed a massive bruise under his eye – the opposite eye to the area that was injured in the first bookcase incident.[60] This incident came to be described as the ‘the second bookcase incident’.
[56]Trial Exhibit P26 (Woolworths CCTV footage showing Stacie between 7.44pm to 7.50pm on 1 September 2019 (edited)).
[57]Stacie had been speaking on the phone to Ms Fuller for most of her walk home from Woolworths, ending the call once she had safely arrived home and was in the front lounge room at around 8.04pm: TT 192 (Stacie Saggers); RT 842 (Jeanette Fuller).
[58]TT 192 (Stacie Saggers).
[59]TT 194 (Stacie Saggers); See also Trial Exhibit P27 (Photograph taken at 20:16:43 on Stacie’s phone of the fallen bookcase on 1 September 2019).
[60]TT 193 (Stacie Saggers).
Stacie felt it did not look like an accident as she thought that a bookcase of that weight ‘could not do that to a little boy’s face’.[61] She was not sure whether Jaidyn could reach the top of the bookcase, and had never seen either of her boys climb the bookcases.[62]
[61]TT 194 (Stacie Saggers).
[62]TT 194, 450 (Stacie Saggers).
At 8.16pm, she took a photograph of the boys’ bedroom showing the fallen bookcase on the floor surrounded by toys, as well as Jaidyn’s mattress and doona, with what appeared to be a small area of bloodstaining on the doona.[63] The doona was off and down at Jaidyn’s feet when Stacie found him.[64] Stacie carried Jaidyn to the couch in the lounge room and asked you if you had heard anything coming from the other room. She recalled that you had a ‘shocked’ look on your face.[65] She considered whether she should take Jaidyn to see a doctor but decided against it as she was worried that DHHS might become involved and remove Jaidyn from her care. You suggested to her that if Jaidyn was taken to the hospital there was every chance the Department would be notified.
[63]Trial Exhibit P27 (Photograph taken at 20:16:43 on Stacie’s phone of the fallen bookcase on 1 September 2019); TT 195 (Stacie Saggers).
[64]TT 194 (Stacie Saggers).
[65]TT 204 (Stacie Saggers).
At 8.29pm, Stacie took a further photograph of Jaidyn’s face showing the swelling and blood.[66] Apart from injuries or marks shown in that photograph she was not aware of any other injuries or marks on Jaidyn’s body at that time.[67] Stacie took the photographs as a reference, knowing that she had to go to work the next day, and if she noticed anything further then she had something to show the police. She was concerned that something further might happen.[68]
[66]Trial Exhibit P28.
[67]TT 202-3 (Stacie Saggers).
[68]TT 203 (Stacie Saggers).
Later that evening, a friend of Stacie’s, Trent Knight, came by the Potts Road residence along with his partner Josie. They stopped nearby in their car and spoke to Stacie briefly through the car window. Stacie mentioned that a bookshelf had fallen on Jaidyn and injured him while she was out at the shops earlier that evening. Trent suggested taking Jaidyn to hospital but Stacie said she couldn’t because DHHS would become involved.[69]
[69]RT 952 (Trent Knight).
Michael Shelton (‘Shelton’) was a friend of Stacie’s who sometimes drove her to and from her cleaning jobs and who also supplied drugs to her. Stacie sent a message to Shelton on the Sunday evening at 9.38pm saying she might need his help to get medical attention for her son.
The Crown case as put to the jury was that the two bookcase incidents occurred in the way described by Stacie: that on each occasion when she found the bookcase on the floor and Jaidyn with an injury to his face she had left Jaidyn in your care. The Crown case was that on those occasions, you assaulted Jaidyn to the head or face, and then made it appear that the bookcases had fallen over and were the cause of the injuries to explain away the injuries to Jaidyn. This evidenced a pattern of behaviour and a tendency to inflict physical harm on him and deflect blame by proffering an excuse for the injury, or creating a situation where the furniture in the bedroom was deliberately disturbed. The Crown adduced evidence that the two bookcase incidents were the only two occasions that the white cubed bookcases were found on the floor whilst Stacie and the two boys had lived at Potts Road.[70] Also, the Crown established that Misty had not seen any injuries on Jaidyn prior to you moving in with Stacie.[71]
[70]TT 195 (Stacie Saggers).
[71]RT 978 (Misty Doyle).
2 September 2019
It was apparent from the evidence at trial that both you and Stacie were awake during the Sunday night and Monday morning, and used ‘ice’ over that time.
Some time before midnight on Sunday evening, Sarah Heald, and her partner Craig Broadley, visited the Potts Road residence. They stayed for a few hours smoking ‘ice’ with the pair of you. After they left, Stacie sent messages to Heald in the period after 3.00am, saying she was meant to go to work tomorrow but did not think she could as ‘Poor Jaidyn pulled the bookcase down on him yesterday’; ‘I’ve been checking on him every hour just to make sure his [sic] okay’; ‘His [sic] got a bad bruise.’ The Crown submitted to the jury that these communications showed Stacie sharing her concerns about Jaidyn with others.
Stacie made ongoing observations of Jaidyn’s face and at 4:43am she took two further photographs of him with her mobile phone, showing the substantial bruising and swelling around his right eye.[72] She took these photographs as a further reference, potentially to show police.[73]
[72]Trial Exhibits P32 and P33; TT 218 (Stacie Saggers).
[73]TT 219 (Stacie Saggers).
Between 4.32am and 6.32am communications took place between Stacie’s phone and Shelton’s phone and your phone and Shelton’s phone. Soon after 6.40am, Shelton attended the Potts Road residence and the three of you smoked ice together.[74] Shelton also communicated with Stacie later that morning, pressing to be paid for drugs previously supplied.[75]
[74]RT 1120 (Michael Shelton).
[75]Trial Exhibit P35: Messages timestamped 10.13am to 10.19 am, and 11.17 am.
Stacie gave evidence that Chayse and Jaidyn woke up between 7.30am and 8.00am on Monday 2 September. They played together and had Weet-Bix for breakfast. During the course of that morning, Stacie communicated over Facebook messenger with a potential client, Kylie A (‘Kylie’), about an oven-cleaning job to be done that day at Kylie’s house in Tyabb.
Meanwhile, at 9.32am you made two calls to Colac Magistrates’ Court, first at 9.32am[76] and then at 10.02am.[77] At 10.02am you also sent an email to the Court,[78] expressing a number of reasons why you were unable to attend the child protection proceeding that morning, citing fears for your safety and welfare. You wrote: ‘I am aware of the implications that may arise, and appreciate the seriousness of these proceedings’. You also referred to the Department’s decision to limit your contact with your children, complaining: ‘I have also had my phone contact and contact visits stripped without notice or explanation’. You requested an adjournment and change of venue. Soon after the email, at 10.15am, you sent a text message to Ms N, saying you would not be going to court that morning and explaining why. You complained that you had not had the requested phone contact on Father’s Day and were left feeling ‘largely upset and disenfranchised with the Department and the way my relationship with my children is being handled!’[79]
[76]Call duration of 1 minute and 23 seconds.
[77]Call duration of 46 seconds.
[78]Being Colac Magistrates’ Court.
[79]Trial Exhibit P54.
The Crown submitted to the jury that because of the frustration you were experiencing from being deprived of your own three children, you were in a heightened and upset state on the morning of 2 September, which influenced your behaviour towards Jaidyn when you were later left in charge of him.
From 10:39am, you made a number of phone calls, including to Centrelink at 10:45am. That call lasted one hour and 13 minutes. You told Centrelink that you needed an advance payment to attend court in Colac that day. The Crown submitted that the real reason you were seeking the advance payment was to get money to pay for drugs.
Stacie was to attend Kylie’s house in Tyabb to perform the oven clean but she could not find a friend to drive her there. She booked an Uber to take her and arranged for you to mind the two boys. Before she left, shortly after midday, she put Jaidyn to bed for his afternoon sleep.
At 12.06pm she took a photograph of Jaidyn’s face, while he was lying on his bed. She took the photo as a reference, in case she saw any other injuries on Jaidyn when she got home. She also took a photo of Chayse at 12:24pm, before leaving for work. At that time, as far as Stacie was aware, the only injuries on Jaidyn were the ones depicted in the photographs taken by her following the second bookcase incident, between 8.29pm on 1 September 2019 and 12.06pm on 2 September 2019.[80]
[80]TT 202–3, 232–3 (Stacie Saggers); see also Trial Exhibits P28, P32, P33, P36.
At 12.26pm Stacie’s Uber arrived at the front of the Potts Road residence. When Stacie left in the Uber with her cleaning equipment, Chayse was on the couch with you and Jaidyn was in his bedroom. As she was about to get in the Uber she saw Jaidyn in the bedroom window, waving at her with his bottle hanging out of his mouth.
At 12.35pm Stacie sent you a message saying ‘Love you xxx’. That message was not delivered to your phone until 2.03pm.[81]
[81]The failure of Mr Pallant’s phone to receive messages over a period of time on 2 September was not able to be explained to the jury, and Mr Gibson conceded as much during his closing address (TT 981).
At about 12:45pm Stacie arrived at Kylie’s house in Tyabb. She began to clean Kylie’s oven and spoke about her children and about her personal circumstances. At 1.32pm Stacie sent a Facebook message to you asking ‘What are boys doing’. Although that message was delivered, there was no response to that message so at 1:35pm she sent a Facebook message to Shelton asking ‘any idea where Brendan is’. Shelton replied, ‘No idea why would I know’. Shelton agreed in the message thread to come to Tyabb and collect Stacie and give her a lift home. At 1.57pm, Stacie sent another message to you asking ‘where are the boys’ but that message was also not delivered to your phone until 2.03pm.[82] Phone records show that you called Stacie at 2.03pm,[83] and at 2.08pm, you sent a Facebook message with a photograph of Chayse standing in front of the television. You did not send any photograph of Jaidyn at that time.
[82]See footnote 81.
[83]With a call duration of 4 minutes and 3 seconds: Trial Exhibit P41, row 1542.
Kylie became aware that Stacie was speaking on the phone whilst cleaning the oven and began to seem rushed. She heard her say words to the effect of ‘I’ll deal with it’ or ‘I’ll deal with him’. She noticed Stacie becoming messy in the oven-cleaning task and being on a further call 20 minutes later in which she was saying: ‘I’m coming, I’m coming.’ Shelton called Stacie at 2.24pm as he was pulling up outside Kylie’s Tyabb address to pick Stacie up. He recalled Stacie sounding frustrated on the way home and seemingly communicating with you while en route.
At 2.38pm, Stacie messaged you, stating ‘I need you to get 50’ and ‘Now please’. You called Stacie at 2:38pm[84] and told her that Jaidyn was still asleep in bed, and that she should not disturb him when she got home.[85] According to Shelton, Stacie said she was calling you to see how Jaidyn was, and he heard her say, ‘that’s unusual he’s still asleep’.
[84]For 2 minutes and 19 seconds.
[85]TT 247 (Stacie Saggers).
At approximately 2:45pm, Shelton dropped Stacie home, and helped her unload her cleaning products. You came out to assist and invited Shelton in but he said he had to go and left.
The Crown alleged that sometime between 12:26pm when Stacie left for work, and around 2:45pm when she returned, you inflicted the fatal injuries to Jaidyn.
Stacie messaged Paul at 2.56pm with a minor query and she received calls from a cleaning customer, Daniel, between 2.56pm and 3.01pm.[86] When Stacie walked inside the house, Chayse was sitting in the front loungeroom. You had put some lunch on a plate and guided Stacie into the master bedroom to eat it. Stacie felt she was discouraged from going in to check on Jaidyn and recounted that you said she must be tired and that she hadn’t eaten.[87] She said you suggested lying down for a while. Stacie said she picked at her food and cuddled you on the bed.
[86]Stacie could not recall clearly if she was already home during those communications. TT 253–4 (Stacie Saggers).
[87]TT 253–4, 260, 261 (Stacie Saggers).
At 3.09pm Stacie sent two messages: one to Sarah Heald asking her to drop off some cigarettes,[88] and one to Jeanette Fuller continuing an earlier chat about Fuller’s dental problems. At 3.24pm she sent a message to Kylie apologising for leaving before finishing the oven clean and offering to return later that evening to finish the job.[89] While she was lying on the bed with you, Stacie closed her eyes for about 5 minutes.[90] She then recalled you getting off the bed and saying ‘time to check on Jaidyn’. Stacie got off the bed just after you.
[88]Trial Exhibit P52.
[89]Trial Exhibit P34. Stacie sent a message at 3.24pm which read: ‘Thankyou for today Kylie. I am happy to come back later this evening if you like? I really do need the work at the moment. I do apologize for not being able to finish it off.’
[90]TT 254 (Stacie Saggers).
Just before 4.08pm Stacie saw you going towards the boys’ bedroom and then heard you say Jaidyn’s name and, ‘What the fuck.’ You emerged from the boys’ bedroom carrying Jaidyn into the back lounge room keeping your back towards Stacie, so she could not see him properly, meanwhile telling her to ring triple zero. Stacie phoned triple zero screaming hysterically.[91] The triple zero communications were played to the jury.[92]
[91]The calls were interrupted and the call takers rang back.
[92]Trial Exhibits P44, P45, P46, P47.
Meanwhile, neighbour Anthony F overheard the commotion from next door and rushed into the house to offer assistance. He spoke on the phone to triple zero while instructions were given. He saw facial trauma and blood on Jaidyn and assisted your efforts with CPR. You were seen to vomit during this time. Stacie remained frantic and hysterical.
Acting Sgt Wallace was first on scene at about 4.15pm. He attempted CPR and noted that Jaidyn was cold to touch. At 4.19pm MICA paramedics arrived and attempted CPR. Jaidyn was declared deceased at 4.22pm. His temperature was noted to be 28 degrees on tympanic thermometer.[93] Other police arrived and a crime scene was declared.
[93]Dr Burke confirmed that normal temperature is 36 to 37 degrees: RT 1369.
You and Stacie were both arrested, along with the neighbour, Mr F. Stacie and Mr F were later released but you remained in custody. Body worn camera (BWC) footage of your interactions with police was played to the jury.[94]
[94]Trial Exhibit P64 (BWC of Constable Macintosh); Mr Pallant is seen being cautioned whilst being placed under arrest on the ground in the street outside the house, after which he is then questioned by a detective.
Forensic and medical evidence
The crime scene, with a focus on Jaidyn’s bedroom, was photographed, video-recorded and inspected by crime scene examiners with expertise in collecting evidence of blood pattern analysis, DNA and forensic samples. The bedroom revealed a child’s plastic multicoloured play table upturned in the area behind the door, and various children’s toys scattered on the floor. There was an area of bloodstaining on the southern wall of the boys bedroom,[95] and on the carpet on the floor nearer to the bedroom door. The bloodstaining on the floor was more saturated, allowing the inference that it was a location where Jaidyn had been positioned and bleeding for an indeterminate period of time.[96] There were droplets of blood, described as airborne droplets, on the southern wall and skirting board consistent with blood being cast-off from a moving source with force additional to gravity with some sideways projection.[97] Four blue toy storage cubes were situated near the northern wall and a small fabric covered child's chair was resting on top of one of the cubes. Bloodstaining was observed on the fabric covered child’s chair.[98] To the east of the child's chair was a metal-framed table (’the metal-framed table’) that was overturned and resting on its side on top of the storage cubes and toys.[99] Presumptive testing for blood gave positive results at various evidence markers placed within the room.[100]
[95]To the left looking from the doorway.
[96]This evidence was discussed by forensic scientist Maxwell Jones: RT 1652–3.
[97]RT 1654–5 (Maxwell Jones).
[98]With areas of saturated staining which had a diluted appearance.
[99]According to Stacie’s evidence, this table was usually upright and near the bedroom door, with the toys on top that were later found scattered on the floor near the door (see Trial Exhibit P5, Photo 87).
[100]Markers B1 to B14.
Hair samples from loose hair found in Jaidyn’s bedroom and on his body were relevant to the Crown case that you assaulted Jaidyn.[101] This included a clump of hair located on the bedroom floor and a clump resting on his top. The evidence suggested the hair samples came from Jaidyn’s head,[102] and in relation to some key samples,[103] the hairs were found to be in the active growing phase, indicating that these hairs were not naturally shed, but were removed by force. This is consistent with grabbing and pulling the hair from the scalp, or there being some forceful action to remove the hairs.[104]
[101]The relevant hair samples included: a clump of hairs on the bedroom floor near the door and near an area of bloodstaining (Item 3); a clump of hairs on the bedroom floor between the north wall and a child’s chair (Item 4); a hair from the corner of the metal-framed table near label B4 (Item 6); and multiple hairs found inside the right shoulder area of the white long-sleeved top which had been on the deceased (Item 7): RT 1587–9 (Louise Brown).
[102]The DNA profiles within the roots of the hairs from Items 3, 4, 6 and 7 were analysed. All samples produced a single source DNA profile with a likelihood ratio of 100 billion that Jaidyn was the source of the DNA, meaning there was extremely strong support that Jaidyn was the source of those hairs: RT 1626–9 (Maxwell Jones).
[103]Items 3, 4, 6 and 7.
[104]The evidence was that the greater the number of hairs that have been removed, the greater its significance as an indication that the hairs were removed by some sort of forceful action: RT 1597 (Louise Brown).
The evidence derived from the metal-framed table was important, because it is this object that the Crown alleged was wielded by you during an assault on Jaidyn leading to his death.
The key aspects of evidence linking the metal-framed table to an act of violence against Jaidyn were as follows:
(a) Blood swabs from blood observed on the bottom rail, table leg and top corner[105] that linked to Jaidyn via DNA analysis.
[105]Swabs B1, B2 and B5. See also: Trial Exhibit P5 (Photos 137–149); Sample B1 had a single source DNA profile, and Jaidyn could not be excluded as the source, with a likelihood ratio of 100 billion that he was the source of the DNA. Samples B2 and B5 produced mixed DNA profiles, each with two contributors. In relation to the major profile of each, Jaidyn could not be excluded as the source, with a likelihood ratio of 100 billion that he was the source.
(b) Bloodstain pattern analysis relating to the table.[106]
[106]Bloodstaining at marker B1 had features indicating transfer staining from another area or surface of blood. Bloodstaining at markers B2 and B3 on the lower section of one leg appeared to be predominantly transfer staining, with wipe or swipe marks. There was one small circular stain with features of a single spatter stain, indicating airborne blood spatter, and potentially a sign of some level of force. Bloodstaining at marker B5, near the top corner of the table, also exhibited features of transfer staining: RT 1660–1662 (Maxwell Jones).
(c) A hair consistent with Jaidyn’s hair that was located attached to the corner of the metal-framed table (Item 6).
(d) The evidence of forensic pathologist Dr Michael Burke who attended the crime scene and later performed the post-mortem examination of Jaidyn[107] and obtained CT scans. At a further examination some days later,[108] Dr Burke was provided with the metal-framed table which weighed 4.6 kilograms. A rectangular-shaped ‘plastic foot’ measuring 2 centimetres by 1 centimetre located on the base of this table appeared to match the rectangular-shaped depressed fracture seen on Jaidyn’s skull. Dr Burke opined that given the similarity of the dimensions, it was reasonable to suggest this projecting plastic foot of the table could have been a cause of the depressed fracture to the skull. This was pictorially demonstrated to the jury through photographs taken of the matching of the plastic foot to the size and shape of the depressed fracture.[109]
(e) Dr Linda Iles provided an expert neuropathological opinion regarding the injuries to Jaidyn’s brain. In relation to the penetrating injury to the intracranial cavity, ‘in keeping with Dr Burke's findings of a depressed fracture, there has to have been something with a projecting element in order to - to push a small amount of hair into the brain.’[110] She observed a healing response regarding the penetrating injury so death was not rapid or instantaneous.
[107]On 3 September 2019.
[108]On 9 September 2019.
[109]RT 1359, 1360 (Dr Burke).
[110]Dr Iles also described a superficial laceration of the right parietal cortex associated with a bone fragment and hair shaft material which she believed was associated with the depressed fracture and was ‘indicative of a penetrating injury that has actually penetrated the dura and has actually injured the surface of the brain’. She further noted, ‘there’s been a communication from the scalp … and the hair has been embedded in the brain tissue’ (RT 1442–3).
The depressed skull fracture was only one of a large number of documented injuries on Jaidyn referred to in the evidence of Doctors Burke, Iles and Smith.[111] Each of these experts gave evidence concurrently and were taken through their findings in detail. Dr Burke observed that the cause of death was head injury,[112] and he provided a summary of autopsy findings, being firstly, head injury with complex skull fractures and secondly, multiple and widespread bruises and laceration to the right eye with an associated haematoma (black eye).[113]
[111]Dr Jennifer Sutherland Smith’s findings are discussed further below.
[112]RT 1356 (Dr Burke).
[113]RT 1356, 1357 (Dr Burke).
Dr Burke referred to four comments contained in his autopsy report:[114]
[114]RT 1357 (Dr Burke).
1. The post-mortem showed a severe head injury involving a large subgaleal[115] bruise with a fracture extending around the sides and back of the head,[116] and a depressed fracture to the right parietal region.[117] The skull fracture was associated with a significant brain injury;[118]
[115]Beneath the scalp.
[116]Measuring 25cm.
[117]On the right side of the head.
[118]Dr Burke then gave evidence of the subsequent comparison between the depressed fracture and the plastic cap on the foot of the table: Trial Exhibit P8; RT 1359.
2. The post-mortem showed widespread bruises and abrasions, primarily to Jaidyn’s face;
3. Post-mortem skeletal survey confirmed the skull fractures;[119]
4. Neuropathology examination showed inflammatory (healing) changes in the dura and positive beta-APP staining in the cerebrum indicating a period of survival following the injury which led to death. Whilst Dr Burke in his report had indicated this survival period would be measured in the tens of minutes, he later allowed a survival period which could be in the tens of minutes but could be an hour.[120]
[119]No rib, pelvic, vertebral or upper or lower limb fractures were identified.
[120]RT 1369, 1416–7 (Dr Burke).
Dr Burke testified that:
(a) On reflection of the scalp there were extensive subgaleal bruises.[121] These could not all be accounted for by the depressed fracture because of the large area of bruising and the bruising being in different planes, including on the sides and back of the head.[122] Therefore it was more likely that there was a separate application of force and it was not all caused by the same blow that caused the depressed fracture;[123]
[121]RT 1422, 1423 (Dr Burke). Measuring at least 20cm by 15cm on the right side, and 16cm by 9cm on the left side, extending all the way around the head.
[122]RT 1423, 1424 (Dr Burke).
[123]RT 1423, 1424 (Dr Burke).
(b) The skull fractures included a rectangular-shape depressed region,[124] a longitudinal fracture from that depressed fracture towards the vertex[125] and a radiating fracture from the depressed fracture, extending around the back of the head[126] and to the top of the head, as shown in the CT scan footage;
[124]Measuring 2cm by 1cm.
[125]Measuring 3.5cm.
[126]Measuring 25cm.
(c) The depressed fracture and the radiating fracture could have been caused by one application of force, especially if Jaidyn’s head was against the ground.[127]
[127]RT 1433 (Dr Burke).
(d) The degree of force required to cause the depressed fracture would be ‘moderate to severe’, and it was likely caused by something with a projection.
(e) Looking at the amount of skull bruising and the extent of the skull fracture Jaidyn would have had to have been incapacitated after the infliction of the injury, and not normal following that head injury.[128]
(f) Based on the nature of the depressed skull fracture and the extensive nature of the fractures he did not think they were accidentally caused and considered they were most likely due to an assault.[129]
[128]RT 1428 (Dr Burke).
[129]RT 1437, 1438 (Dr Burke).
Dr Burke also observed numerous other non-fatal injuries listed as a total of 31 injuries, being bruises and abrasions on the face, head, neck, chest, abdomen, wrists, forearms, legs and back.[130] It was not possible for the bruises and injuries to be dated with accuracy, though some were observed by Dr Burke to be older than others, and some tissue samples showed signs of healing. In relation to the totality of these injuries, Dr Burke said in his opinion Jaidyn was assaulted, including based on the various injuries on multiple planes.
[130]Photographs of these injuries were also examined by Dr Smith.
Consultant forensic paediatrician, Dr Jennifer Sutherland Smith observed that, based on her examination of the material including the autopsy photographs:
(a) ‘[T]he skull fracture is a marker of how much energy has been transmitted to the brain.’[131]
(b) ‘[I]t is a very extensive fracture … it has been so extensive that there’s hair shafts and bone fragments penetrating into the brain itself. So that certainly suggests, if not indicates, that there's been a significant force applied to the skull. It’s not the sort of finding that you would tend to see in a child who's fallen from someone’s arms or who’s fallen off playground equipment. So that leads me to conclude that it’s, as Dr Burke said, a moderate to severe … amount of force that has been applied.’[132]
(c) Dr Smith opined that the fractured skull was the result of an assault.[133] She referred to the complex combination of injuries to Jaidyn including to areas of the body not commonly injured by accident.[134] She also noted that bruising went all around Jaidyn’s head and that the multiplicity of planes of injury was unlikely to have been caused by a childhood accident.[135] She stated that the pattern of injury and the totality of the injury is not something that she would be associating with accidental injury, even on multiple occasions from multiple mechanisms.[136]
[131]RT 1479 (Dr Smith).
[132]RT 1517–8 (Dr Smith).
[133]RT 1451 (Dr Smith).
[134]RT 1451–2 (Dr Smith).
[135]RT 1453 (Dr Smith).
[136]RT 1489 (Dr Smith).
Record of Interview
During a formal interview with police you denied assaulting Jaidyn and gave an account in which you referred to the episode of injury to Jaidyn on 1 September, saying that Jaidyn had a black eye and that Stacie said the bookshelves tipped over on him so you assumed it was that, so there was no reason to escalate it and take him to a doctor or hospital. You said the Sunday was Father’s Day and you hadn’t spoken to your babies yet. You said you prepared for the Colac Court on the Sunday night and on the Monday you typed up a letter to the Court at about 10 am. You said Stacie put Jaidyn to bed and left at around 12.30pm to 1pm.
You mentioned Stacie’s query about the boys while she was away and how you sent the photo of Chayse and that ‘that was it’ until she got home. You said that you put some pizza in the oven 15 minutes before Stacie got home. When asked whether anyone checked on Jaidyn when Stacie got home, you told police that Jaidyn was asleep and that Stacie’s policy was usually ‘don’t rock the boat’.[137] You claimed that Jaidyn had not been up since Stacie put him down and that you had not seen him since the morning.
[137]Trial Exhibit P65, Q&A 216.
You said that you went into Jaidyn’s bedroom to wake him up. You said when you opened the door, the activity play table was behind the door, and an armchair[138] was ‘tumbled over’ with Jaidyn face-down on the floor underneath the chair.[139] You said he was on his tummy and his top was covered in blood.[140] You said that his arms and legs looked ‘awkward’ and you ‘knew it wasn’t natural’, and referred to the toys, chair and table around him.[141] You then described scooping him up, feeling for a pulse but finding nothing, and attempting CPR.[142]
[138]This is later clarified in the interview as being a kid’s armchair made of fabric (Trial Exhibit P65, Q&A 341–344). LSC Carolyn Davis, a crime scene officer, described the armchair as being ‘lightweight’ although she could not say how much it weighed (RT 144). An overall view of the armchair is seen in Photo 114 of Trial Exhibit P5.
[139]Trial Exhibit P65, Q&A 221–222, 281.
[140]Trial Exhibit P65, Q&A 264–265.
[141]Trial Exhibit P65, Q&A 275–276.
[142]Trial Exhibit P65, Q&A 293–297.
Conclusions on disputed facts
In resolving the dispute as to the factual basis for sentencing, I observe that I am bound by conventional sentencing jurisprudence regarding disputed facts that are not elemental to the jury’s verdict.[143]
[143]I must not take facts into account in a way that is adverse to you unless they are established beyond reasonable doubt; however, if there are circumstances relied on in your favour, it is sufficient for those circumstances to be proved on the balance of probabilities. R v Storey [1998] 1 VR 359, 369; R v Olbrich (1999) 199 CLR 270 [27].
Regarding the fatal assault on Jaidyn , your counsel sought to mitigate your crime by reference to the spontaneous and short-lived nature of your loss of control within the context of the stress you were under at that time. I accept that the assault on Jaidyn may have been of short duration. It did not need to take long. Regarding the argument put forward on your behalf that I could not find that more than the single fatal blow was inflicted at the time of the incident, I am satisfied beyond reasonable doubt that the assault on Jaidyn when you lost control was more extensive than the single act of wielding the table into his head.
It is not necessary to delineate a finding regarding each post-mortem injury observed on Jaidyn in order to reach this conclusion. My conclusion is based on the totality of the evidence before the jury,[144] including Stacie’s account of Jaidyn’s condition before and on the morning of 2 September 2019,[145] Paul’s evidence as to Jaidyn’s presentation on Saturday 31 August 2019, photographic imagery of Jaidyn from before his death compared to the post-mortem photographs,[146] and the medical evidence presented at trial.[147] Other relevant aspects include the state of Jaidyn’s bedroom following the incident,[148] the torn-out clumps of hair, the injuries to parts of Jaidyn’s body not commonly injured by accident, and the injuries to different planes of the head.[149] It seems likely that Stacie would have noticed some or all of the additional injuries or clumps of hair if they were present before she left for work on Monday 2 September.[150] Furthermore, Dr Smith referred to the photos taken by Stacie on her phone in comparison to the post-mortem images and noticed some post-mortem injuries to Jaidyn’s face that were not visible in Stacie’s earlier photographs, including a laceration adjacent to Jaidyn’s right eye.[151]
[144]I note that not all of the photographs taken of Jaidyn after his death were presented before the jury, and by agreement, the Crown did not lead crime scene photographs showing Jaidyn on the floor, and only led a selection of the autopsy photographs, some of which were cropped (Mention transcript, 4 July 2022, 32). However, the medical experts had access to the wider set of photographs for the purposes of providing their original reports and opinions (RT, 1398: 23-24 and 1423: 7-8 (Dr Burke); RT, 1447-8 and 1451:19-20 (Dr Smith)).
[145]TT 232-233 (Stacie Saggers).
[146]See, eg, Trial Exhibit P19 (CCTV footage on 30 August 2019 showing Stacie and Jaidyn); Trial Exhibit P28 (Photograph of Jaidyn taken at 20:29:26 on 1 September 2019); Trial Exhibits P32 and P33 (Photographs taken of Jaidyn at 4.43am on 2 September 2019); Trial Exhibit P36 (Photograph of Jaidyn taken at 12:06:05 on 2 September 2019).
[147]Especially the evidence of Dr Burke and Dr Smith.
[148]As seen in the crime scene photos with disturbed furniture including the small multi-coloured plastic table that was upside down with a detached leg, the positioning of the child’s arm chair and the bloodstains described by Maxwell Jones.
[149]Dr Burke and Dr Smith considered that the bruising to different planes on Jaidyn’s head, could not be fully explained by the blow that caused the fractures, leading to the opinion that there must have been more than one application of force to Jaidyn’s head.
[150]Stacie said she was not aware of other injuries on Jaidyn other than those arising from the two bookcase incidents.
[151]RT 1451 (Dr Smith).
Jaidyn had received bruising to his face on the days of the so called bookcase incidents, as observed by Stacie and others, so the remnants of injuries from what occurred on those occasions may have been present post-mortem, along with unnoticed injuries from minor childhood mishaps, but I am unable to accept that Jaidyn’s overall post-mortem presentation can be fully explained by any such pre-existing injuries in combination with the single fatal blow that fractured his skull.[152]
[152]Assuming favorably to Mr Pallant that a single blow caused the fractured skull.
I am also persuaded that having assaulted two year-old Jaidyn with the metal-framed table, intending at the very least to cause really serious injury (as was proven by the jury verdict) you must have appreciated that Jaidyn would need medical attention. The assault must have occurred before Stacie got home, so even if the assault occurred towards the end of the period that she was absent, there was a significant delay between her arriving home and you retrieving Jaidyn from his bedroom, after having deliberately assaulted him with the table. I accept the Crown’s submission that your failure to provide any caring response, or medical assessment until a period after Stacie arrived home, is an aggravating feature of the offence.[153]
[153]In this regard, see DPP v McDonald [2020] VSC 845 [30] (Kaye JA).
Procedural history and conduct of trial
The Crown produced a helpful chronology of the history of the proceeding after you were charged on 2 September 2019. The COVID-19 pandemic intervened during the pre-trial stage and led to some unavoidable delays, although much of the pre-trial argument and preliminary examination of witnesses was able to be conducted remotely in 2020 and 2021. A trial listing date in September 2021 had to be vacated due to the pandemic but the first trial commenced on 4 July 2022. The Jury in the first trial were discharged without verdict on 10 August 2022.[154] The re-trial commenced on 14 June 2023 and the jury delivered a guilty verdict on 18 July 2023. You then dismissed your lawyers in September 2023 and delays occurred while your new lawyers became instructed and collated materials for your plea.[155]
[154]The jury were unable to reach a unanimous verdict.
[155]Including subpoenaing records from Justice Health and Corrections and preparing affidavit material regarding custodial management.
Disputed issues at trial
The issues at trial included whether you were the cause of Jaidyn’s fatal injury, or whether it could have been someone else, and what was your intention if you were found causally responsible. The nature of your defence involved the implication to the jury that Stacie may have been responsible for Jaidyn’s death, submitting that she was the last person to see Jaidyn alive.[156] Stacie was cross-examined at length with a focus on her drug-using lifestyle and the intervention of DHHS in respect of her older two sons. As well as disputing responsibility for the fatal assault on Jaidyn, you disputed responsibility for the earlier injuries on the days of the two bookcase incidents.
[156]In the defence’s response to the Crown’s opening, Mr Nathwani said of Mr Pallant: ‘He does not know exactly how Jaidyn died. It could be an accident or whether it was someone else who caused those injuries. That is, Stacie Saggers, Jaidyn’s mother, the last person to see him alive.’ (TT 88)
The two bookcase incidents
Factual basis
I am satisfied to the criminal standard as to your responsibility for each bookcase incident. I accept Stacie’s account as to her confusion about how the bookcases came to be down on the floor on each occasion. There had never been any previous disturbance to the bookcases or episodes of the boys climbing on them to Stacie’s knowledge prior to the two bookcase incidents.
Regarding the first bookcase incident, I am satisfied of Stacie’s account that she went in to Jaidyn’s bedroom in the morning following an extended period of child minding by you on the previous day, and noticed the bookcase down on the floor and Jaidyn’s injury. Stacie confided the first bookcase incident to Paul and in doing so confided a concern about whether you had been harming Jaidyn. Paul’s evidence confirmed that he was told about the first bookcase incident and of Stacie’s concern about you harming Jaidyn before the Saturday morning visit during which she asked Paul to physically inspect Jaidyn.[157] It was clear from the evidence of the Woolworths staff that the first bookcase incident pre-dated Stacie attending Woolworths on the evening of Friday 30 August 2019.[158] Stacie testified that following the first bookcase incident she sought your help in moving one of the bookcases to a location behind Chayse’s bed where it could not fall down.[159]
[157]Saturday 31 August 2019.
[158]Based on Stacie’s evidence she must have made the discovery either on the Thursday morning or Friday morning.
[159]TT 576-577 (Stacie Saggers).
As a matter of simple logic, it is understandable that after the second bookcase incident Stacie’s level of concern increased. She was only absent from home for a relatively brief period on the Sunday evening, having put Jaidyn to bed before she left. She was aware of Jaidyn’s condition and the condition of the bedroom just before she left to the shops that evening, and yet when she came home, she confronted another episode of a disturbed bookcase and Jaidyn being injured. Therefore, she began to take photographs documenting her concerns. That night she raised the matter with you, Mr Pallant. She spoke to or messaged Trent Knight, Michael Shelton and Sarah Heald on the topic of her concerns about Jaidyn. She took a series of photographs documenting how she found the bookcase and Jaidyn and showing the evolving injury to his face.
I do not accept that it is reasonably possible that Stacie was responsible for the two bookcase incidents or that they were the result of accidents caused by Jaidyn himself.[160] Instead, I am satisfied to the criminal standard that regarding the two bookcase incidents you feigned ignorance as to how Jaidyn came to be injured to deflect blame away from yourself, when you were in fact responsible.
[160]I note that it was never suggested that Chayse was involved and the evidence did not support that possibility.
Relevance of the bookcase incidents to sentencing
Mr Dann argued that the two bookcase incidents, if established beyond reasonable doubt, could not amount to an aggravating feature of the offending, and at best deprived you of the possibility of mitigation which would be available if the fatal incident had been an isolated event.[161]
[161]See Weininger v The Queen (2003) 212 CLR 629 regarding the difficulty that may arise in applying the distinctions between circumstances of aggravation or absence of mitigation.
The Crown submitted that the two bookcase incidents provide an aggravating context for the conduct on 2 September 2019, placing reliance on LN v R[162] (‘LN’) where the New South Wales Court of Criminal Appeal said:
Evidence of earlier events is not relied upon by the prosecutor to demonstrate that other offences had been committed; it is relied upon (in relation to sentencing) to demonstrate the objective seriousness, for example, of the charged offence.[163]
[162][2020] NSWCCA 131.
[163]Ibid [41] (Basten JA, RA Hulme J agreeing).
The discussion in LN about the significance of earlier uncharged acts covers similar territory to the discussion of the Victorian Court of Appeal in DPP v McMaster[164] (‘McMaster’). Applying Ashley JA’s approach in McMaster as the preferred approach, I remain mindful of the limitations on the use of uncharged act evidence adversely to you. Put simply, you are not to be sentenced for the uncharged acts involved in the earlier bookcase incidents; rather, they remain contextually relevant in showing that the conduct on 2 September 2019 was not an isolated occasion, thereby negating any mitigation that might have flowed to you had the fatal assault been an isolated incident.[165]
[164]19 VR 191 [56]-[62].
[165]This finding is likely in reality, as recognised by Ashley JA, to have some adverse effect, from an offender’s standpoint, upon the sentence imposed in respect of the charged offence, when matters such as prospects for rehabilitation or questions of the need for specific deterrence are considered.
Objective gravity of the offending and moral culpability
The Crown observed that its case at trial was not put on the basis that you necessarily intended to kill Jaidyn, as opposed to intending to cause really serious injury. Nor was it alleged that the attack was planned or premeditated. However, the Crown submitted that the objective gravity of your offending was high, due to Jaidyn’s young age and vulnerability together with the nature of the assault. The infliction of injuries by wielding the metal table into the head of a young child[166] and resulting skull fracture implied significant force was applied to the brain.[167]
[166]Plea Exhibit P3, 7 [23(g)].
[167]RT 1465:29-30 (Dr Burke).
The Crown submitted that murder is a more serious offence when committed by a person entrusted with a child’s care. You were entrusted by Stacie with the care of Jaidyn, and Jaidyn should have been safe and secure in his own home.[168]
[168]See also R v Dempsey [2001] VSC 21; DPP v Lindsey [2018] VSC 239 [34].
The Crown referred to their submission that the extent of the assault on 2 September must have involved more than one action, therefore making your conduct more serious than otherwise.[169] The Crown also highlighted the failure to seek medical attention or inform Jaidyn’s mother after assaulting Jaidyn, in circumstances where you assaulted Jaidyn intending to, at the least, cause him really serious injury.
[169]As discussed earlier, the Crown submitted that the Court should find that, although the skull fractures and resulting brain injury could have been caused by a single application of force, this did not explain the extensive subgaleal bruising around the back of the head, and the multiple non-fatal injuries on multiple planes.
The Crown described your moral culpability as particularly high, given the manner of infliction of injury, the absence of provision of help immediately after the fatal act, your general lack of remorse and the absence of excuse for the assault on Jaidyn. It was pointed out that Dr Burke’s evidence was that Jaidyn remained alive for a period after the fatal blow was struck. You had been awake and using drugs in the overnight period and had used ice that morning, but neither anger, frustration nor the effects of methamphetamine use could mitigate your assault on such a young and vulnerable child. Further, the earlier assaults on the occasion of the two bookcase incidents show that the offending was not an isolated instance.
The Defence did not dispute that the objective gravity of your offending was increased due to Jaidyn’s age and vulnerability and the breach of the trust reposed in you by Jaidyn’s mother.[170] However, submissions were made on your behalf that the following factors reduced the objective gravity of your offending:[171]
[170]Plea Exhibit D1 [37], [98].
[171]Plea Exhibit D1 [99].
(a) The spontaneous nature of the assault and the fact that the fatal blow to the head need not have involved a prolonged action;
(b) The lack of concealment or flight from the scene;
(c) The provision of assistance to Jaidyn after you retrieved him from his bedroom;[172]
(d) Your willingness to answer police questions;[173] and
(e) Your ‘genuine emotional distress’ upon learning of Jaidyn’s death and upon being charged with murder.
[172]By seeking for triple zero to be called and attempting CPR.
[173]By speaking to police in a roadside interview and participating in a formal recorded interview, noting that although Mr Pallant did not admit assaulting Jaidyn, he agreed he was the only person present at the house looking after Jaidyn and Chayse.
For the avoidance of doubt, I state that I will sentence you on the basis that an intention to cause really serious injury was established, rather than an intention to kill Jaidyn. I agree with the Crown’s submission that your offending is made more serious by the manner of infliction of the fatal injury on two year old Jaidyn and by the breach of trust involved in the offending. On any view, your conduct in murdering a defenceless infant entrusted to your sole care must be regarded as extremely grave. I accept that the assault on Jaidyn was likely of short duration and not pre-planned or retaliatory,[174] whilst observing that I have found that this was not an isolated occasion of assaulting Jaidyn. I also consider your failure to obtain help for Jaidyn after the assault aggravates the offence.[175] Although you did not flee the scene, you did initially conceal Jaidyn’s condition from Stacie.
[174]Cf DPP v Williamson [2000] VSC 115; R v Quarry (2005) 11 VR 337; R v Freeman [2011] VSC 139.
[175]See, eg, DPP v Woodford [2017] VSC 108 [42]–[43] (upheld in DPP v Woodford (2017) 269 A Crim R 567); R v Hughes [2015] VSC 312 [118] ; R v Vinaccia [2019] VSC 683 [86]
I agree with the Crown submission that neither personal distress and loss of control nor the effects of drug use provide any excuse for an assault of this nature on a two-year-old child. Although you did remain at the scene and answer police questions, I consider that your behaviour after the assault on Jaidyn was largely self-serving and aimed at deflecting responsibility for the injuries to Jaidyn.[176] You have continued to deny responsibility and shown no remorse. Your moral culpability is high.
[176]See, eg, Staples v The Queen [2021] VSCA 307 [75] (Maxwell P, Kaye and Emerton JJA).
Victim impact statements
I have received and taken into account the victim impact statements provided by Jaidyn’s mother Stacie, and his two grandmothers, Sandra Saggers and Jeanette Fuller.
Stacie spoke of her ‘beautiful boy’ whose life was cut short by an act of cruelty. The incident has taken a huge toll on her life, and she feels she has lost everything. She has struggled to function most days. Her heart is broken, and there will always be an emptiness inside.
Since the event, Sandra Saggers struggles to get on with her life and enjoy the things that once made her happy, and her health has declined rapidly.
Jeanette Fuller punishes herself on a daily basis for what happened.
The impact of your crime on Jaidyn’s mother and grandparents has been profound. I accept that Stacie in particular has carried an enormous burden whilst coming to terms with the events that led to Jaidyn’s untimely death.
Prior criminal history
The Court received your criminal record and both sides helpfully provided tabulated summaries in relation to your prior offending.[177]
[177]The Crown provided police summaries for relevant prior matters and also prepared a ‘Table of relevant prior convictions’. However, the Defence disputes some of the LEAP summaries.
Your criminal history spans the period from 2007 to 2018. It involves assaults, family violence, property, driving, and drug-related offences. Of particular relevance to the current offending is your history of assaults and instances of violence in a domestic setting.
To summarise some of the more relevant convictions and court dispositions during that period:
(a) In 2007, when you were aged 20, you received a 12 month Community-Based Order (‘CBO‘) for offences arising out of an assault of a former partner;[178]
[178]The offences included recklessly cause injury, criminal damage, and possess controlled weapon. The offending arose out of a domestic incident on 15 February 2007 and concerned Mr Pallant’s first partner CR, where he admits to having struck her to the cheek but does not admit the LEAP summary. He maintains that he was also assaulted by her relatives.
(b) In 2009, when you were aged 22, you were dealt with for robbery and placed on a suspended sentence;[179]
[179]Aggregate two months’ imprisonment, wholly suspended. Mr Pallant was charged on a complicity basis and pleaded guilty.
(c) In 2010, when you were aged 23, you were convicted and fined for unlawful assault;
(d) In June 2011, when aged 24, you were sentenced to 12 months’ imprisonment for assault-related offending;[180]
[180]Non-parole period of 4 months. The offending occurred on 11 October 2009 and included assault in company, threaten serious injury, use threatening words in public, and hinder police/ambulance. The LEAP summary is disputed but it is conceded by defence that the incident concerned in the aftermath of a car accident concerning the co-accused’s girlfriend.
(e) In July 2011, you were sentenced to five months’ imprisonment for other assault-related offending;[181]
[181]The offending included unlawful assault, threat to inflict serious injury, and possess controlled weapon without excuse.
(f) In December 2011, you were sentenced to ten days’ imprisonment for criminal damage with intent to damage or destroy;
(g) In 2013, when aged 26, you were sentenced to two months’ imprisonment (wholly suspended) for unlawful assault, relating to an incident involving your former wife, LM;[182]
[182]The offending occurred in 2012 and allegedly involved an assault on Mr Pallant’s former wife, LM, by punching and kicking. The LEAP summary of this offending is not admitted by Mr Pallant.
(h) In April 2016, you were sentenced to a 12 month Community Corrections Order (‘CCO‘) for persistent contravention of family violence orders in respect of LM;[183]
(i) In June 2016, you were again sentenced to a 12 month CCO for recklessly cause injury and related charges, arising out of a serious assault of LM;[184]
(j) The most proximate court appearance before your arrest on the current matter followed an appeal to the County Court on 8 November 2018 from a sentence imposed at a consolidated plea hearing in the Magistrates’ Court. The outcome of the appeal was that you were sentenced to 18 months’ imprisonment, with a non-parole period of 12 months. The offending included two separate charges of recklessly cause injury;[185] unlawful assault;[186] contraventions of family violence orders;[187] and a weapons offence.[188]
[183]The contraventions related to repeated attempts to communicate with LM and attending LM’s place of residence on 26 August 2015, in breach of the conditions of a Family Violence Safety Notice (‘FVSN’).
[184]It was admitted that this offending involved a serious assault on Mr Pallant’s former wife LM in 2015, in which he slammed her head into a wall and bit her on the face and nose (Informant Stephenson). Mr Pallant says that this occurred in the context of marital breakdown and pleaded guilty to the offending.
[185]The Informant Rennie matter concerned the events of 1 November 2016, where Mr Pallant assaulted a neighbour with a pitchfork. The Informant Madden matter concerned an incident on 25 April 2018, where Mr Pallant took a phone from his former partner JC, and when she attempted to retrieve it, Mr Pallant punched her in the face two to three times. After being made to leave the home, Mr Pallant later returned and punched JC in the face again. The police summaries of these offences are accepted.
[186]Informant McLennan matter: This offending concerned an assault on LM in the family home on 4 February 2017, involving punching, pulling hair, and other physical and verbal abuse. Mr Pallant pleaded guilty to this offending. The police summary of this offending is accepted.
[187]The Informant Bradley matter involved charges of persistent contravention of a FVSN and contravening an Interim Family Violence Intervention Order (‘FVIO’) between 8 to 14 February 2017, during which time Mr Pallant allegedly sent 106 text messages and made 39 phone calls to LM, in breach of the conditions of the family violence orders. The Informant Vandenberg matter concerned charges of contravention and persistent contravention of an Interim FVIO between 21 August 2017 and 9 January 2018 where Mr Pallant made several attempts to contact LM in breach of the FVIO conditions. The police summaries of these offences are admitted.
[188]Mr Pallant was found in possession of a pocket knife (Informant Warner matter).
The Crown correctly submitted that your criminal history is relevant to an assessment of your prospects for rehabilitation, and to the need for specific deterrence and community protection, but cannot be used to increase your sentence or doubly punish you. As will be discussed later in these reasons, Bugmy principles also have a bearing on my approach to your past criminal history.
Nevertheless, it is apparent that you have had a problem with anger management, self-control and substance abuse with a history of repeated instances of violent offending, including in domestic settings. Generally, you have not responded to remedial sentencing approaches and they have not been successful in leading to sustained rehabilitation. Accordingly, the Crown submitted that your prospects for rehabilitation should be assessed as guarded in the context of your escalating offending.
Personal circumstances
You are currently aged 37. Your counsel detailed your history based on your instructions and from previous reports and custodial records. This included reference to your family circumstances, education, employment, medical and mental health history, past substance abuse, personal hardships, custodial experience, and future goals.[189]
[189]Plea Exhibit D1 [100].
As to your upbringing and early life, the following background facts can be gleaned from materials put forward on your behalf:
(a) You grew up in Mornington and are the second eldest of four children. You are of Aboriginal descent on your mother’s side.[190] Your father was involved in antique dealing and your parents ran two successful stores and a café.
[190]Mr Pallant is a ‘proud Wiradjuri man’.
(b) Unfortunately, your father suffered from schizophrenia leading to strain on the marriage and loss of the businesses and properties. Some information suggests that your father’s mental illness led him to react violently and unpredictably in the family setting (including towards you) attracting police attendances to the family home.[191] Your parents separated when you were 18 years old.
[191]Although the report of Warren Simmons (Plea Exhibit D10) provided context to Mr Pallant’s prior criminal history, I note that it was not strongly supportive of him having suffered physical abuse from his father as a child. For example, at page 2, Mr Simmons writes: ‘His father would enforce the rules and although this was occasionally physical, they were generally grounded or sent to their room’.
(c) You attended Mornington Primary School and Mornington Secondary College.
(d) You were struck by a car as an 8-year-old child and suffered a fractured femur and other injuries leading to four months in hospital, followed by difficulties returning to school. A TAC related report from psychiatrist Dr Ingram touches on these matters.[192]
[192]Mr Pallant instructs that he continues to suffer physical pain and discomfort related to nerve damage from the accident
(e) Despite doing well academically, you were frequently truant in secondary school. You helped look after your younger brother[193] and often missed school to do so whilst your parents were working.
[193]12 years younger.
(f) You claim to have been subject to bullying at secondary school and left school by the end of Year 9.
(g) You have described childhood sexual abuse from outside the family. Although the Crown pointed out that this history was not provided in some of the earlier psychological reports from your youth, I am prepared to accept that you may have withheld some information at that time. Having been forced out of home at 16, it seems that a previous male employer took advantage of your financial dependency and sexually exploited you. You were only 17 when that behaviour commenced, leading you down a path of risky behaviours and worsening drug use.
(h) Your employment history included working at a nightclub for the abovementioned employer in your teens, working in warehousing in your twenties, and performing various other casual work. Your ability to work full-time was impaired by chronic pain connected to your childhood car accident.
(i) You did a Year 10 equivalent course at TAFE, at one stage holding aspirations of becoming a youth worker.[194]
[194]You had commenced but did not complete a Diploma of Youth and Child Welfare.
(j) You suffered major grief in 2015 when your older brother died due to a drug overdose.
(k) You have had two significant relationships: a five-year relationship with CR between the ages of 16 to 21 years, and a ten-year marriage to LM when you were aged 21 to 31 which produced three children (now aged 14, 10 and 9).
(l) You describe yourself as having been a hands-on father to your children, although there were periods where you could not leave the house.[195] Your relationship with LM was marred by your ongoing drug use and it broke down in 2017, leading you to lose custody of your children. LM did not use drugs in a harmful way until the later phase of your relationship with her, when she also lost custody of the children for a period of time.
[195]Described as periods of of ‘agoraphobia’
(m) Currently your two younger children reside with LM, although your 14-year old son is now living out of home.
(n) Despite being in custody, you maintain a close relationship with your mother and three siblings and enjoy strong family support including prison visits. Your mother currently works as a disability support worker but has previously worked in management roles.
(o) You are currently hoping to pursue courses to obtain professional qualifications.[196] You are an intelligent person and have pursued education in custody despite interruptions from being relocated within the prison system whilst on remand. You have completed a number of educational units,[197] and have held a role as a billet and head billet[198]performing general cleaning, food handling and washing. Whilst at the MRC, as part of the Prisoner Representative Group, you attended monthly meetings with staff within the prison.
(p) You have embraced opportunities to further your cultural learning about your Aboriginal heritage whilst in prison,[199] and have undertaken programs to learn about cultural practices and ideologies.[200]
[196]Either in accountancy or architecture.
[197]Cleaning (Certificates I & II); Traffic Management (Certificates I, II & III); OH&S – Bio-cleaning; Food handling; First Aid (Certificates I & 2); CPR; and an Aboriginal cultural parenting program.
[198]Mr Pallant held the position of Head Billet for a period of 14 months whilst in the open Deakin A unit at MRC.
[199]Including through regular engagement with Ngumba-Dal cultural learning.
[200]Mr Pallant has completed an estimated 30 modules on remand and is currently awaiting new course materials. Together with a fellow Aboriginal inmate, he helped lead an initiative to establish a Koori garden and mural painting in the protective unit at MRC.
It was put on your behalf that your behaviour on remand reflects positively on your future prospects. Emphasis was placed on your engagement in employment and leadership roles and participation in courses. I accept that there have been periods of positive engagement whilst on remand, depending on your placement. Mention was made of your participation in psychological counselling noting that Mr Candlish opined that your psychological conditions are amenable to treatment intervention. In combination, the periods in which you have been engaged in work, education, cultural matters and psychological treatment should help improve your rehabilitation prospects.
Your medical history includes the following matters:[201]
[201]See, generally, Plea Exhibit D1 [151]–[170].
(a) Chronic pain from your childhood car accident,[202] and from having been a victim of prior assaults[203]
(b) Self-inflicted injuries in prison.
(c) Multiple physical comorbidities which appear to have become worse in custody.[204]
[202]Mr Pallant instructs that he continues to suffer physical pain and discomfort related to nerve damage from the accident
[203](including that Mr Pallant has mentioned including being the victim of an assault at a bus stop in 2016, which required a hospital admission( : Plea Exhibit D10 (Psychological report of Warren Simmons, 15 December 2010) 3.
[204]Namely recurrent chest pain, severe dental disease, type 2 diabetes, hypertension, hypercholesterolaemia, chronic spinal pain, chronic constipation and haemorrhoids, anaemia, migraines, testosterone deficiency, asthma, elevated BMI, urinary symptoms, peripheral neuropathy of the arm, previous hepatitis C, and impaired mental health.
You claim that you have experienced difficulties accessing required medications and adequate pain management in custody.[205] Whilst your frequent complaints of this nature are borne out in the custodial records, I am unable to regard all of your claims as fully verified. However, I accept that you may subjectively believe them to be true.
[205]The defence submissions refer to buprenorphine causing stomach and colorectal issues, and that Mr Pallant has been unsuccessful in having his pain medication switched back to ones he has tolerated well in the past. Mr Pallant states that the poor management of his pain affects his mental health. Annexure B of the submissions lists Mr Pallant’s current medications and supplements (29 in total).
You have also experienced poor mental health during your remand which I will discuss shortly.
Family testimonials
I have taken account of testimonials provided by your sister Matilda,[206] your youngest brother Sam,[207] and your mother Donna.[208] Those letters reflect on some of the struggles your family endured in the past, and profess ongoing love and support for you. Family support will be important to your rehabilitation.
Bugmy principles
[206]Matida wrote in positive terms about her brother, Mr Pallant.
[207]Sam described Mr Pallant as a ‘father figure’ to him growing up.
[208]Donna said she would guide and assist Mr Pallant to become a good, positive and contributing member of society upon his release.
Your counsel placed reliance on Bugmy principles based on your disrupted upbringing, including that which was caused by your childhood car accident and family disruption flowing from your father’s mental illness. [209]
[209]In Bugmy v the Queen [2013] HCA 37, the High Court explained that a person’s upbringing, where marked with significant deprivation and disadvantage, is relevant in a number of ways to the sentencing exercise. The effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, and it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.
According to an earlier report by Aaron Cunningham, you did not have stable patterns of behaviour or prosocial methods of mood management modelled to you as a child. You were forced to leave home in your teens and quickly became vulnerable to financially-based sexual exploitation by a male employer.
I accept that your upbringing was disrupted to some extent in the ways I have just mentioned, potentially predisposing you towards impaired mental health, but when regard is had to all the material before the Court about your childhood and adolescence it is not an entirely bleak picture. Nevertheless, I will accord some moderation of moral culpability based on Bugmy factors.[210] Bugmy factors also influence my consideration of what is to be drawn from your criminal history, although community protection also remains relevant as part of the sentencing exercise. Even making allowance for mitigation of moral culpability based on Bugmy factors, I still regard your moral culpability for the offence in this case as being of a high order.
[210]I also recognise in this regard the over-representation of Aboriginal and Torres Strait Islander peoples in custody, and the historic failures of the criminal justice system to justly deal with Indigenous Australians coming before the courts: See HA (a pseudonym) v The Queen [2021] VSCA 64 [59].
Burdensome custodial circumstances
According to an affidavit sworn by you,[211] when you were first remanded in custody you felt most unwell, and were sleep deprived and withdrawing from drugs. On your account you were initially denied medical assistance and self-harmed and then were taken to hospital. You spent three days in the cells before being taken to the MAP. It was submitted on your behalf that your experience on remand has been more onerous and difficult as a result of a range of factors. You have complained of mistreatment by prison staff, alleging that your food has been tampered with, and that you have been deprived of medical or psychological care, and been subjected to threats, abuse and assaults by other prisoners. You complain that you have spent lengthy periods in lockdown conditions. These matters were described in your affidavit and also mentioned in the Candlish report.[212]
[211]Plea Exhibit D2.
[212]Plea Exhibit D1 [188].
A response to your allegations was received from Corrections via the affidavit of Assistant Commissioner Hinrichsen and via the affidavit of Ms Ashmore from Justice Health.
Following receipt of the response affidavits from Corrections and Justice Health, the Crown submitted that there were some obvious contradictions between your account of certain matters and Corrections’ account of the same matters and that the differences were self-evident. The Crown had earlier argued that aspects of the materials covering your management in custody referred to a note about a somatisation disorder and about self-harming to manipulate placement decisions.[213]
[213]Plea transcript (‘PT’) 33-34 (25 March 2024).
On your behalf it was submitted that the response material confirms the burdensome nature of your experience of custody in some key aspects, including the fact that you have been subjected to an extraordinary number of prisoner movements whilst on remand and appear to represent a placement dilemma for the Corrections authorities; that you have experienced continued health difficulties with a number of transfers to hospital; at various times you have been subjected by other prisoners to threats and assaults; that at least on a subjective level you feel mistreated by Corrections staff and believe that at times you have been denied appropriate medical treatment. You have been regarded as at risk of self-harm[214] and you have been subjected to frequent periods of placement in isolation or lockdown conditions.
[214]The affidavit material refers to episodes of self-harm or threatened self-harm.
The Court was also told that on 3 May 2024 you received a separation order,[215] and that for the preceding six-and-a-half weeks you had been confined to your cell and isolated from other prisoners. The Corrections and Justice Health material did not address that period[216] so I do not have the full benefit of understanding the exact reasons for your most recent separation but I note that a number of placements have broken down in the past for a variety of reasons. Your prisoner records show that you have often refused runouts made available to you during more restrictive placements although it seems that you often felt is wasn’t worthwhile to go out for short periods.
[215]Noting ‘prisoner separated due to safety concerns from other prisoners’: Plea Exhibit D11 (Defence final submissions) [12].
[216]The response material related to the earlier affidavit.
I accept that your placement in custody has not been easily managed and that constant relocations have been disruptive and difficult for you. I also observe that there have been periods over the course of the current remand when you have functioned relatively well in certain placements.
While not all of your complaints and concerns can be verified, it appears that you have suffered a significant deterioration in your general physical health since being on remand, including experiencing poor dentition and dental abscesses. More recently your lack of out of cell time may have contributed to physical deconditioning and poorer physical health. I note however, that custodial records also show that you are not always cooperative with planned appointments or treatment and you are not always reliable in the information you give to prison or medical staff. However I do accept that your poor mental and physical health make your experience of custody particularly burdensome for you.
Custodial records support that you have experienced threatening behaviour from other inmates. Abuse by other prisoners can be regarded as an extra-curial consequence arising in part from the nature of your offending. I also accept that you subjectively believe you have been mistreated in custody and that your overall health needs have not been managed appropriately. I have listened to the audiotape of your complaint to the Ombudsman about perceived mistreatment.
Finally, on this topic, I have read the account of your current lockdown circumstances.[217] Lengthy periods of solitary confinement are likely to be detrimental to your overall mental and physical health.[218] I have previously commented on the potential detriment suffered by prisoners who are subjected to lengthy lockdown conditions,[219] and I note that the Court of Appeal has recently discussed these matters.[220] I do not know why you have not been having more out-of-cell time in recent weeks, but it appears vital that you receive psychological support, physical health support, and careful consideration of your placement following sentencing.
[217]As described in the Supplementary Defence Submissions : Plea Exhibit D11 [12]–[22].
[218]I note however that the Corrections records show that you have at times expressed a strong preference to be in a single cell
[219]DPP v Pearson [2023] VSC 483 [70]–[90].
[220]Yat v The King [2024] VSCA 93 [64]–[92] (‘Yat’).
I cannot assume that the harsh conditions currently applied to you will continue throughout your sentence, but I take into account the conditions you have laboured under to date and I recognise that burdensome conditions are likely to continue to some extent in the foreseeable future.
Ultimately, I do not need to decide the veracity of all the allegations you have made about your management on remand. Your adverse experiences (whether based on verifiable causes or not) appear to have depleted your resilience so that you are now coping less well than you were at earlier phases of your remand. There is an aspect of extra curial punishment due to the effect of measures taken to protect you from other prisoners.[221] These considerations as to the burdensome nature of your experience of custody tie in with Verdins limb 5 which I will come to shortly.
[221]See, eg, Yat [84]–[89].
Verdins
The report of Mr Candlish was relied on in support of Verdins limb 5,[222] and ultimately it was only this limb that was persisted with.[223] Mr Dann submitted that past psychological and psychiatric reports revealed a consistent theme of mental health struggles, including past episodes of self-harm.[224] The case of Brown v The Queen[225] was invoked and reliance was placed on your diagnosed personality disorder. Your personality disorder was also mentioned in the Justice Health affidavit and records.[226]
[222]Plea Exhibit D1, 62–3.
[223]Despite limb 6 earlier being raised in the Defence’s written submissions, this position was not persisted with orally or in the Supplementary Defence Submissions.
[224]PT 54 (25 March 2024).
[225](2020) 62 VR 491 [59]–[69] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA): An offender with a diagnosed personality disorder stands in precisely the same position as any other offender in relying on impaired mental functioning in mitigation of sentence based on Verdins factors.
[226]Plea Exhibit C1 (Justice Health Affidavit) [47],[133]; Plea Exhibit D8 (Justice Health records) 1.
Mr Candlish interviewed you on several occasions and had access to earlier reports. He also conducted psychometric testing.
His report made the following findings:
(a) You have a moderate personality impairment. The relevant personality disorder trait domains include negative affectivity, detachment, dissociality and disinhibition.
(b) You are considered to meet the criterion for a persistent depressive order (moderate). You have a history of depression going back to childhood, periods of social withdrawal and low mood, the taking of antidepressants, becoming ‘agoraphobic’ after the birth of your son and rarely leaving the home.
(c) You have engaged in self-harming and self-destructive behaviours over the years.
(d) Mr Candlish did not support a diagnosis of autism spectrum disorder or a current diagnosis of PTSD.
(e) Regarding substance abuse, you began using cannabis from age 14 and abusing alcohol from the age of 12; amphetamine and methamphetamine use began in your late teens, including injecting it. You reported commencing heavy substance use in your 20s. You accept that ice use contributed to the demise of your marriage. Mr Candlish diagnosed that you had a substance use disorder for cannabis and stimulants (severe) but this is in remission in a controlled environment.
Your personality disorder, persistent depressive disorders and substance use disorders existed at the time of the offending.[227]
[227]Plea Exhibit D3 [108].
Mr Candlish observed that you have undertaken psychological counselling on remand.[228] The Court was informed that these sessions were paused when you were transferred from MRC to MAP on 23 December 2023 and only resumed in April 2024, which is unfortunate.[229] Further, that there is a risk that the sessions will end due to the treating psychologist leaving the MAP and not being replaced.[230]
[228]Involving Cognitive Behavioural Therapy and Dialectical Behavioural Therapy, with weekly treatment sessions.
[229]Plea Exhibit D11 [10].
[230]Plea Exhibit D11 [11].
Mr Candlish recorded your complaints about your treatment in prison[231] including that you had spent two and a half to three years in long-term management due to the nature of the offence.[232] He found that your personality impairment affects your perception of self and others, and you will continue to experience issues related to your sense of self, and are more likely to engage in self-destructive behaviour. You are likely to experience problems in your interpersonal relationships with distorted misinterpretation and hostile attributions, and are more prone to conflict and emotional dysregulation. However, the severity of these issues should reduce over time if appropriate treatment is obtained. Mr Candlish considered you vulnerable to substance relapse in prison and after release.
[231]For example, Mr Pallant alleges he was taunted by staff communicating over the intercom system asking when he was going to commit suicide and placing razors under his door and that staff tampered with or threatened to tamper with his food.
[232] This reportedly involved being isolated for 24 hours per day and having one hour per day to leave your cell. You would refuse the one hour of outside access on account of fear of being assaulted.
Mr Candlish also opined that the effect of your combined disorders is that you are much more likely to experience prison as a hostile and onerous environment compared to others, and that you are at risk of self-harm and suicide; likely to struggle to cope with a long sentence; and prone to behaving in ways detrimental to yourself.
I am persuaded that an allowance should be made for Verdins limb 5 based on your personality disorder and depressive disorder which will continue to make your time in custody more difficult.[233] The Crown did not suggest otherwise.
[233]PT 79–80 (25 March 2024).
Delay
Your counsel relied on delay as a factor in mitigation of sentence, referring to stress and uncertainty while awaiting the outcome of this case in the context also of the impact on prisoners of the COVID-19 pandemic, and in the hardship of your circumstances on remand. This is not a case where there was any delay between the offence date and charging but there were some delays occasioned by the pandemic and a delay of 12 months flowing from the 2022 jury being discharged without verdict. Following the verdict in 2023, you changed your legal representation and raised a number of matters about your management on remand which meant further time elapsed before the imposition of sentence.
As submitted by the Defence, the cases dealing with the relevance of delay when an offender contests guilt do not all speak with one voice.[234] However, I accept that even where an offender unsuccessfully contests guilt, delay may be relevant either because of stress and uncertainty suffered while waiting for a case to be concluded or because it can be shown that an offender has shown remorse or rehabilitated while awaiting trial.[235] Of course, the weight to be attributed to delay will be more strongly made out where an offender had done everything possible to facilitate justice, and where the offender has shown remorse and pronounced rehabilitation has occurred whilst awaiting trial.[236]
[234]Plea Exhibit D11 [4]
[235]R v Merrett, Piggot and Ferrari (2007) 14 VR 392; Tones v The Queen [2017] VSCA 118 [36]–[40]; DPP v Merryfull [2023] VSCA 244 [61].
[236]Arthars v The Queen (2013) 39 VR 613 [27]; R v Whyte(2004) 7 VR 397.
Although there is scant evidence as to exactly how you have been affected by the ongoing uncertainty pending the outcome of this proceeding, I am prepared to accept in mitigation that you have endured stress and uncertainty while awaiting its conclusion and that there have been some unavoidable delays and that during the pandemic conditions in prison were more oppressive. Whilst you are not remorseful, I accept that you have attempted to use your time on remand to benefit your rehabilitation to some extent. On balancing all these factors I will allow some modest mitigation based on delay.[237]
[237]The Crown did not oppose some moderation in sentence due to delay: PT 88–9 (25 March 2024).
Purposes of sentencing
The Crown submitted that in your case general deterrence, just punishment and denunciation deserve weight, both to punish and denounce your conduct and to deter others from behaving as you did. Specific deterrence and community protection were also emphasised in light of your history of offending in a family violence context.[238] In particular, the Crown submitted that the offending involves a tragic escalation in the context of your past offending, and that previous sentences have failed to deter you from acting out your frustration in a domestic setting. This was said to impact any assessment of your prospects of rehabilitation.[239] I accept these submissions in large part.
[238]Plea Exhibit P1 [11].
[239]Plea Exhibit P1 [33].
The Crown urged a guarded view of your rehabilitative prospects in light of your past record, long term history of substance abuse and failure to reform when offered rehabilitative dispositions. It was submitted that it was almost impossible to disentangle your past mental health problems from your persistent drugtaking over many years.[240]
[240]PT 78 (25 March 2024).
Mr Dann responded that while past violent offending (including in a domestic setting) were relevant to specific deterrence and prospects for rehabilitation, you were quite young at the time of some past offences leading to those matters having lesser significance. I have taken into account the various contextual points provided in the defence plea submissions.[241] However, your past history of violence in domestic settings is concerning.
[241]See Plea Exhibit D1 [231]–[235].
I accept that you have made some efforts to use your time on remand beneficially[242] and that once sentencing is complete you may settle into a more positive routine. You have the capacity to use education to better yourself rather than continuing down the path of destructive substance abuse. The Candlish report is suggestive of some level of insight by you into the errors of your past and a desire to make a better life for yourself once you are released from prison.
[242](Noting Mr Pallant’s engagement in education, work, peer advocacy and cultural supports.)
Just punishment, denunciation, general and specific deterrence, community protection and rehabilitation are all relevant sentencing considerations in your case. Your past criminal history particularly underlines the need for specific deterrence and community protection.[243]
[243]Pursuant to s 5 of the Sentencing Act 1991, the only purposes for which sentences may be imposed are just punishment; specific or general deterrence; denunciation; community protection and facilitation of rehabilitation or a combination of two or more of these purposes.
The fact that the victim was a very young and vulnerable child is a significant aggravating factor and has been found to be so for offences involving violence, including murder and manslaughter.[244] The gravity of your offending against a defenceless infant entrusted to your care is very serious. The fact that your crime involved a breach of trust reposed in you by Jaidyn’s mother is also relevant to sentence.[245]
[244]DPP v Woodford [2017] VSCA 312 [72] (Weinberg, Osborn and Priest JJA). See also DPP v Arney [2007] VSCA 126; R v Kesic [2001] VSCA 171; DPP v McMaster (2008) 19 VR 191.
[245]DPP v Williamson [2000] VSC 115 [26]; R v Freeman [2011] VSC 139 [3]; R v Hughes [2015] VSC 312 [2], [176].
In the case of DPP v Lindsey,[246] Kaye JA weighed a number of competing considerations that have some parallels with your case. While the ultimate sentence imposed in that case is not available to be used for comparative purposes, since it pre-dates the operation of the standard sentence scheme, the matters balanced by his Honour have some resonance.[247] His Honour relevantly stated:
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.[248]
[246][2018] VSC 239 (‘Lindsey’).
[247]Although there his Honour was dealing with a more sustained and severe assault than the present case.
[248]Lindsey [35].
His Honour went on to describe the offender’s culpability in that case as being of a high order, noting also that the infant victim in that case was deprived of his most basic right: his right to life. I adopt those remarks and note that I have already described your moral culpability as high, whilst accepting some mitigation based on Bugmy factors.
Regarding your prospects for rehabilitation, whilst accepting that they may be accurately described as guarded, I also acknowledge that after a long sentence, you may make some progress in reforming yourself. Your prospects for rehabilitation will also depend upon your ability to abstain from drug use and your development of strategies for maintaining self-control when frustrated.
Standard sentence scheme and current sentencing practices
The Crown supplied a table of sentences imposed for standard sentence murder cases,[249] but conceded the absence of directly comparable cases, noting that none involved such a young victim.[250] This position was echoed by the Defence. In any case, previous sentences do not create a precedent to be applied unless capable of being distinguished.
[249]Tendered as part of Plea Exhibit P3.
[250]Plea Exhibit P1 [38].
As already mentioned, the standard sentence for murder is 25 years. The ‘standard sentence’ for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the ‘middle of the range’ of seriousness.[251] In DPP v Lindemann, Hollingworth J recently observed that:
A standard sentence is not the same thing as a mandatory sentence. Nor is a standard sentence the primary sentencing consideration, or the starting point from which to add or subtract time. It is just one of the many matters to be taken in to account by a court in performing the instinctive synthesis method of sentencing.[252]
[251]Objective factors affecting the relative seriousness of an offence are determined without reference to matters personal to the offender, and wholly by reference to the nature of the offending.
[252][2024] VSC 220 [117].
Considering all of the objective factors attaching to your offending, I am satisfied that your offending lies well above the ‘middle of the range’ of seriousness.
By the process of instinctive synthesis of every aspect of relevance to your sentence, I have arrived at the sentence I will shortly announce.
Parsimony and proportionality
I have applied the principles of parsimony[253] and proportionality to your sentence.
[253]Sentencing Act 1991 (Vic) s 5(3).
Sentence
Brendan Pallant, please stand.
On the charge of murder, you are convicted and sentenced to a term of 32 years’ imprisonment. This is higher than the standard sentence for murder.
I fix a non-parole period of 25 years.
Pursuant to s 18(4) of the Sentencing Act, I declare that you have already served 1778 days by way of pre-sentence detention, not including today’s date, and I direct that this be reckoned as time already served under the current sentence.
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