Director of Public Prosecutions v Staples
[2020] VSC 683
•15 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0074
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| CAMERON DAVID STAPLES | Accused |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 October 2020 |
DATE OF SENTENCE: | 15 October 2020 |
CASE MAY BE CITED AS: | DPP v Staples |
MEDIUM NEUTRAL CITATION: | [2020] VSC 683 |
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CRIMINAL LAW – Sentence – Child Homicide – Actual circumstances of offending unknown – Plea of guilty – Positive prospects of rehabilitation – No prior convictions – Sentence of 9 years’ imprisonment with a non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N A Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms C L Lynch | Papa Hughes Lawyers |
HIS HONOUR:
On 25 June 2020 you pleaded guilty to Child Homicide of your son Flynn. The offence carries a maximum penalty of 20 years.
On Tuesday, 6 October 2020 a plea was conducted before me.
The Summary of Crown opening, which became Exhibit 1 on the plea, was read by the Crown Prosecutor, Mr Neill Hutton, who appeared on behalf of the Director of Public Prosecutions. In setting out the facts for the purpose of this sentence I have called heavily upon that opening.
In May 2019 you were living in a permanent relationship with Robyn Hall at 9/12 Mountain View Road, Kilsyth. You and Robyn started your relationship at the end of 2015 and moved in together in April 2016.
On 5 January 2019 Robyn gave birth to Flynn. Flynn was a healthy child and at the time of his death had no known medical conditions. He was four months old.
At about 6 pm on Friday, 3 May 2019 Robyn left home to attend a local cinema with a friend. You remained at your home alone with Flynn.
At 6.15 pm you left home and walked about 350 metres to the Churinga Village Shopping Centre. You left Flynn at home.
You purchased eight cans of Woodstock Bourbon and Coke cans, each can contains 200 millilitres of 12 per cent alcohol pre-mixed drink (about two standard drinks per can). You returned home at 6.20 pm.
At 10 pm Robyn returned home and found you painting in the kitchen. At about 10.30 pm she checked on Flynn who appeared to be sleeping. She tried to give him a bottle and played with his lips to try and rouse him but he was not interested so she put him back to bed.
At 11.15 pm Robyn checked on Flynn and was not able to wake him. He was moaning and his jaw was clenched tight. He was limp in her arms and not responsive to stimuli. She noticed a poo stain on his clothes and a bruise on his leg.
At 11.57 pm she rang ‘000’ and reported that Flynn was unresponsive and requested an ambulance. She described Flynn’s condition as I have just set out.
At 12.09 am on Saturday, 4 May, paramedics attended the home and examined Flynn. He was unresponsive. He was immediately transferred to the Box Hill Hospital and on arrival was further transported to the Monash Medical Centre Paediatric Intensive Care Unit.
Flynn underwent a CT scan and other tests. He was found to have suffered subdural and subarachnoid haemorrhaging, a left sided scale haematoma and a hypoxic-ischaemic injury. His brain was swollen. He was placed in an induced coma and photographs were taken.
On Tuesday, 7 May 2019, you had a conversation with Dr Joanna Tully (Head of the Victorian Forensic Paediatric Medical Service) at the Monash Hospital, also present were your parents. During that conversation you said:
a.You changed Flynn’s nappy and then went into an adjoining room;
b.You returned and saw that Flynn was on the floor by the side of the change table;
c.Flynn was lying on his side and making crying noises like he usually does;
d.You picked Flynn up and he seemed ok;
e.Flynn settled easily and did not vomit or appear irritable or in discomfort; and
f.You put Flynn back into his cot to go to sleep.[1]
[1]Report of Dr Joanna Tully, dated 4 June 2019 [15] (Depositions, 78).
Flynn passed away at Monash Hospital on 7 May 2019.
On 8 May 2019 an autopsy was performed. Flynn was discovered to have:
·intracranial haemorrhages (subdural and subarachnoid);
·bleeding around the spinal cord;
·severe retinal haemorrhages;
·a severe hypoxic injury to the brain;
·scalp swelling;
·scalp bruising; and
·multiple other areas of bruising to his legs, arms and buttocks.
Dr Tully reported:
The combination of these features indicate that Flynn has suffered inflicted injury as a result of an adult handling him in an inappropriate manner, most likely by violent force or shaking with associated impact against a firm or hard surface. The history provided of a short distance fall from a change table following which Flynn appeared to be well is not sufficient to account for the totality of his injuries. There is currently no evidence of any naturally occurring medical condition that would reasonably explain Flynn’s clinical presentation or the constellation of his injuries.[2]
[2]Report of Dr Joanna Tully dated 4 June 2019, at 23 (Depositions, 100).
The prosecution case was based on that expert medical opinion in that the injuries caused to Flynn that resulted in his death were caused by you, being an
…inflicted injury as a result of an adult handling him in an inappropriate manner, most likely by violent forceful shaking with associated impact against a firm or hard surface.[3]
[3]Ibid.
The prosecution has thus rejected the varying versions provided by you at different times.
On Saturday, 4 May 2019 police attended at the Monash Children’s Hospital and spoke with you and Robyn in the presence of medical staff. Neither of you offered any explanation as to how Flynn had suffered his injuries. Robyn, of course, was not in a position to do so.
At about 3 pm police attended your home and took photographs and seized some items for forensic testing. They located some empty Woodstock Bourbon and Coke cans in the rubbish bins outside your home.
At 4.10 pm on Saturday, 4 May, Robyn says that you told her:
…while I have been out at the movies with Sarah that he had gone into Flynn’s room and smelt a dirty nappy. He said that he changed him and tried to feed, and that Flynn had fallen off the change table.[4]
[4]Statement of Robyn Hall dated 6 May 2019 [43] (Depositions, 116).
Robyn got upset with you and left the room. You also said that while you were out of the room you heard ‘… a thud’ and returned to the room before picking Flynn up and putting him to bed.[5]
[5]Statement of Gillian Hall dated 6 May 2019 [36] (Depositions, 137).
A short time later when Robyn had calmed down a little she approached you and asked what had happened. In her statement she recalls you telling her that:
…after he changed Flynn’s dirty nappy, that he’d left Flynn on the change table unattended to go and put the nappy into the rubbish bin and to check out his painting, and that when he came back Flynn was on the floor. I asked him how long he was out of the room and Cameron told me that maybe 5 minutes.[6]
[6]Statement of Robyn Hall dated 6 May 2019 [45] (Depositions, 116).
At 4.15 pm you spoke to Detective Sergeant Martin and Detective Senior Constable Andrea Van Gemert, in company with your father, David Staples. Your father said, ‘Cameron has something to tell you’. Detective Sergeant Martin said,’ Yes, Cameron. What is it you want to say?’ You said:
The baby fell off the change table. I went to put the nappy in the bin and when I came back the baby was on the floor. I took his nappy off him at about 9.15, 9.30, and left the room, to chuck the nappy in the bin. The baby worked his way off the change table. One side of the change table is against the wall, with kids toys behind. I found him on his side, left side out, towards the room, making little noises. I picked him up and put him back on the change table. He seemed all right, so I put a new nappy on and gave him a drink and put him to bed. I did not hear any thumps.[7]
[7]Statement of Snr Constable Andrea Van Gemert dated 11 July 2019 [9] (Depositions, 202), and statement of Det Sergeant Sean Martin dated 2 August 2019 (Depositions, 194).
At that point you were arrested and cautioned by Detective Sergeant Martin.
At 4.58 pm, as you left the hospital in company with Detective Sergeant Martin, you said, ‘I’m sorry I lied to you’.
You were conveyed to the Box Hill police station. A record of interview was conducted. During the interview you maintain that Flynn had fallen from the change table when he left the room to dispose of the dirty nappy. You said you were away from the room for about 20 to 25 seconds and that when you returned you found Flynn lying on the carpet near the change table.
You were released from the police station on that day.
You returned to your home and went to sleep. The next day you had a further conversation with Robyn. During that conversation she asked you if you were telling her everything. You told her that you:
… had a few bourbons after she left. I asked him how many and he said he’d bought eight but only drank five. I told him that we were done.[8]
[8]Statement of Robyn Hall dated 6 May 2019 [50] (Depositions, 117).
She then realised that when she left there was not any bourbon in the house and returned to you and asked where you got the drinks from. She recalled the following conversation. You told her that you:
… had walked around the corner to get them. I asked him about Flynn and where he was and Cameron told me he’d left Flynn asleep in his bed.[9]
[9]Ibid [51].
On 11 June 2019, Robyn telephoned you and engaged you in conversation. That has been referred to as the pretext conversation. That call was recorded by police. During the conversation you said that:
a. You lied about Flynn falling off the change table;
b. You were too rough with Flynn like you usually were when affected by alcohol;
c. You were responsible for causing the injuries;
d. You did not detail how the injuries were caused;
e. You put Flynn down ‘pretty hard’ on the floor from the couch;
f. After that point Flynn went quiet;
g. You referred several times to Flynn hitting his head;
h. You were affected by alcohol because you drank too quickly; and
i. Flynn was really quiet when he was on the floor.[10]
[10]Transcript of Pre-text call (Depositions, 772).
On 13 June 2019, you were again arrested and a formal interview was conducted. During that interview, you admitted lying about Flynn falling from the change table. You confirmed that you and Flynn were home alone during the period in which the injuries were sustained.
In that interview you went on to say that you:
a.Were too rough with Flynn during the nappy change;
b.Had problems with Flynn’s foot not coming out of the jumpsuit;
c.Described pulling Flynn towards him and feeling like it was too rough;
d.Were out in the lounge playing with Flynn and he went quiet which made you think you had been too rough with Flynn and hurt his head;
e.May have hit his head when placing him on the floor;
f.Were playing with Flynn (pushing him round) and said he was moving his legs to get him to roll over and that type of thing as much as he could; and
g.Remembered Flynn going quiet while on the floor.
You were charged and remanded in custody.
On the plea, I received victim impact statements from Robyn Hall, Flynn’s mother and Tony Hall and Gill Hall, her parents and Flynn’s grandparents. Those statements were marked Exhibits 2A, 2B and 2C on the plea. The statements were measured but nonetheless very moving. The effects of Flynn’s death and, in particular, the way his death was caused have been devastating and life-changing for them and heightened because of the way they see the effects on one another and their collective sense of powerlessness. It has affected their mental health significantly. It is true to say that their lives will never be the same, but as time passes it can only be hoped that there will be some alleviation of their grief. This is the end of one part of the ongoing saga. Nobody can restore Flynn to them and no sentence I impose provides much consolation. I have taken their statements into account.
It should be noted that your parents and siblings have also been distressed by the loss of Flynn at your hands. It shows the effects of crime such as this are wide-ranging.
You were represented on the plea by Ms Cynthia Lynch of counsel. She tendered, on your behalf:
·The Defence Plea Submissions;
·Report of Neuropsychologist, Mr Matthew Staios, dated 26 August 2020;
·Character reference from David Staples, your father;
·Character reference from Caroline Staples, your mother;
·Character reference from Aaron Staples, your brother;
·Character reference from Michelle Hope, your sister;
·Results of Urine Screens for 29 July 2020; and
·Certificates of Courses Completed in Custody.
You are 35 years of age and have no prior convictions. You are the oldest of three children and have one brother and one sister. You were born in and grew up in Melbourne in what you have reported was a happy household. You were an average student and completed Year 12 at Mornington High School and you had no particular difficulties at school.
When you left school you were somewhat unresolved as to what you wanted to do. You worked both as a labourer and in a vineyard, but then remained unemployed for the best part of two years. You were able to take employment as a gas meter reader, employment in which you remained for the next seven years. You had a long term interest in restoring cars and in 2017 you took up a mature age apprenticeship in classic car restoration. You subsequently fell out with your employer, and that apprenticeship ended and not long before these events.
Since leaving school you had become increasingly isolated, and that was exacerbated by your meter reading job. I will deal separately with your mental health. In December 2014 you met Robyn Hall on an online dating site. You became friendly over the phone and eventually met almost a year later. Not long after that you moved in together. The relationship appears to have been a happy one. Robyn became pregnant in July 2018 and Flynn was born on 5 January 2019. It has been said that you found having a baby difficult at first, but you enjoyed being a father.
I have already referred to your social isolation. As a result of that when you were about 27 you consulted your general practitioner because your social anxiety was overwhelming and you were becoming depressed. You were then prescribed an antidepressant medication and referred to a psychologist for counselling, and you attended a number of sessions for counselling.
In the weeks after Flynn’s death you were admitted to the Psychiatric Assessment and Planning Unit (‘PAPU’) at Frankston Hospital, for review.
You were later assessed by clinical neuropsychologist, Mr Mathew Staios. In his report dated 26 August he reported:
Psychological history.
3.6Mr Staples reported a long-standing history of depression and anxiety, dating back to late adolescence. He reported distancing himself from majority of social network. And between the ages of 24 to 28 reported withdrawing socially due to both generalised and social anxiety. He reported becoming very introverted during this period, preferring to spend the majority of time by himself and working on a range of art projects. Reported in engaging in psychological therapy at 27 years of age for approximately eight sessions, alongside commencing antidepressant (Lexapro) between 27 and 33 years of age. He reported experiencing adverse effects of using Lexapro, and following consultation with his general practitioner, his antidepressants were substituted with Zoloft, which he continues to take in prison.[11]
[11]Report of Mr Matthew Staios, Clinical Neuropsychologist, dated 26 August 2020 (‘Staios Report’).
Alcohol & Substance Use History
3.7 Mr Staples reported periodic cannabis use between 18 to 23 years of age. He denied a history of experimenting with other substances. In terms of alcohol use, Mr Staples reported that he commenced using alcohol as a means of alleviating anxiety. He stated that his alcohol consumption gradually increased throughout the course of adulthood, especially when he moved out of his family home. He stated that his alcohol consumption had reached an all-time high approximately one year prior to the birth of his son, where he was drinking daily, where he reported reaching tolerance and required more alcohol in order to feel a sense of intoxication. He reported drinking approximately six standard drinks during the week and approximately 10-12 over the weekend. On the night of his son’s death, he reported consuming seven cans of bourbon and coke (which he stated were equivalent to two standard drinks per can) and one can of cider. He reported that his alcohol consumption reached its peak approximately three months prior to his current incarceration, he was drinking in the morning.
He further reported under ‘Summary & Opinion’:
…
9.4Mr Staples personality structure limits his ability to express and appreciate the impact of his offending on broader members of his family, including his ex-partner. He was not able to independently express remorse for his actions due to his limited emotional range and tendency towards attachment. That being said, when examples were provided he was able to partially identify that his actions had caused a great deal of distress to a number of individuals, particularly his ex-partner. However, his capacity for self-reflexion appears limited, which is a reflexion of entrenched personality factors and coping style. Given the nature of his offending, coping style and limited emotional range, it is not unexpected that he will not be able to adequately address, discuss and reflect on his offending at this point in time.[12]
[12]Ibid.
He continued:
9.5In considering Mr Staples’ behaviour in the context of his offending, It is my opinion that his long-standing and pre disposing entrenched and maladaptive personality traits alongside depression and anxiety increased his level of disinhibition and reactivity in the moments preceding offending. Thereby, decreasing his ability to regulate his emotions and to form rational thoughts and judgment. These conditions in conjunction with acute alcohol intoxication exacerbated long-standing untreated personality pre-dispositions impacting on his level of moral culpability and engagement in consequences thinking.
9.6Moving forward, Mr Staples will require intensive psychological intervention and monitoring of his personality structure is likely to be a permanent feature of his clinical presentation alongside symptoms of anxiety and depression. His tendency towards alcohol use as a means of coping will also need to be monitored as substance use will likely impact on his judgment and serve to exacerbate maladaptive personality traits. A referral to a forensic psychiatrist specialised in treatment of personality disorder is recommended. Ongoing treatment with a consistent treatment provider is recommended and may assist with building a trusting and therapeutic relationship that is required for meaningful change.[13]
[13]Ibid.
Even though the courts have recently found[14] that personality disorders may reduce moral culpability in some cases, I am not satisfied that on the evidence before me that your psychiatric condition can be said to reduce your moral culpability. In particular, that is so because it cannot be sufficiently separated from the effect on you of a consumption of a large amount of alcohol. I note that it is not possible to say how much alcohol you had consumed prior to you inflicting the fatal injuries to Flynn. On the time set out in the Summary of Crown Opening, it seems certain that you purchased the alcohol soon after Robyn left on her evening out. Although you have given various estimates of your consumption on the night, you told Mr Staios that you drank seven of the cans of Bourbon and Coke and one can of cider. That is about 14 standard drinks of 12 per cent alcohol over a four or five hour period. That seems to bear out what you told Robyn about having drunk too quickly.
[14]See Brown v The Queen [2020] VSCA 232.
It was properly conceded by Ms Lynch that your state of intoxication cannot be in mitigation. She made submissions about your mental state, submitting that your moral culpability could be reduced to a limited extent and Mr Hutton accepted that proposition in part. I reject that proposition.
She further submitted that your personality structure might help to explain why you would leave Flynn alone and go out and purchase the alcohol and that might be so. Although that conduct is hurtful to the victims because it demonstrates a cavalier attitude to the care of Flynn, it does not aggravate this offending.
Further, she submitted that both your personality structure and intoxication might explain your reluctance to give a full and frank explanation of what had occurred at an early stage. You told Mr Staios that you do not remember the specifics of what occurred. That memory loss was described by him as ‘presumed to have psychological rather than neurological cause’.[15]
[15]Staios Report [5.2].
Your alcohol intake on the night was in the context of the abuse of alcohol which has increased over your adult life until it reached a peak about a year before Flynn’s birth. You were then drinking daily and your tolerance of alcohol increased which led to you drinking in larger amounts. By the time of your arrest, you had commenced drinking in the mornings. Your drinking was a means of alleviating anxiety, although you were being medicated for depression on Lexapro, later on, Zoloft and more recently during your term of incarceration on Luvox.
I have some difficulty with the submission that your drinking and personality structure might explain your original reluctance to discuss what had happened to Flynn. I would find that submission more convincing were it not for the detailed and repeated explanations which you gave of Flynn falling from the changing table. You persisted in that explanation for about five weeks until you made admissions in the pretext telephone conversation with Robyn. That is, up until that point you had knowingly told deliberate lies about what had happened to Flynn. It appears from the pretext conversation that you accept that you were too rough with Flynn but deny shaking him. You admit to being affected by alcohol and acknowledge that you may have hit Flynn’s head on the floor, but in general maintain that you have no clear recollection. Your false version of events does aggravate your conduct but not significantly. It nonetheless is hurtful to the victims.
This is a serious offence. The law bears special responsibility to the very young. You will have to live with the death of Flynn and the consequences to the other victims for the rest of your life. I do not regard your intoxication as any way mitigating your behaviour but I have not taken it as a matter in aggravation. It does provide a background of your actions which might not have occurred otherwise. You have suffered psychiatric consequences of your offending, as set out above.
The matters most powerfully in mitigation are that you have accepted responsibility for Flynn’s death and you have pleaded guilty. The plea has been accepted as at an early stage. Cases such as these are notoriously difficult to prove and your plea therefore has significant utilitarian value and saved the witnesses from the need to give evidence. On the balance of probabilities I accept that your lack of memory is genuine. The cause of that is impossible to work out, but nonetheless you have made some disclosures. This is another case which shows how fragile babies are. I find that in accordance with the opinion expressed by Dr Tully that the cause of Flynn’s death was an:
inflicted injury as a result of an adult handling him in an inappropriate manner, most likely by violent forceful shaking with associated impact against a firm or hard surface[16]
and that you were the person who inflicted those injuries. I was informed by your counsel that you do accept that finding. I am not able to say with any degree of certainty what the mechanics of the infliction of the injuries was.
[16]Report of Dr Joanna Tully dated 4 June 2019, at 23 (Depositions, 100).
It is true to say that your conduct is not at the more serious end, or at the most serious end, of conduct relating to small children, and babies in particular. I t is a single episode of short duration with devastating consequences. Your case can be contrasted with other cases where the violence involved was both more severe, more protracted and deliberate.
You have no prior convictions and no prior dealings with the law and I accept that you are unlikely to reoffend, particularly in any similar way.
It appears from Mr Staios’ report that you may have difficulty in showing your own grief and in expressing remorse. I have read the content of the pretext conversation and in that conversation you did express remorse and within the range of your personality deficits I accept that you are remorseful.
I was asked to find that you have very good prospects of rehabilitation. I observed on the plea that in view of what was said by Mr Staios, which I have set out above, your prospects are somewhat guarded. I still regard that as so. Nonetheless, I regard them as positive. On the plea I received letters from each of your parents and your brother and sister. They all spoke well of you and were surprised to see you in this position. They have seen no violent propensity, largely the opposite. Just how much they understood your psychiatric deficits and alcohol problems is not clear, but you do have their unqualified support.
You have used your time in custody well. You have completed courses and the certificates of completion were tendered on the plea. You are a unit billet and have assisted older prisoners. They are all matters going positively to your rehabilitation.
I have taken into account that as a result of the COVID pandemic, the conditions of serving a sentence until such time as those matters are resolved will be more onerous. In particular I note that you have not for some time been able to receive any visits.
I am obliged to have regard to the current sentencing practices and I have reviewed a number of recent sentences in the cases referred to me by the parties. No two cases are identical. There are always features of particular cases, which operate in different ways.
I am obliged to have regard to retribution and just punishment, general and specific deterrence and protection of the community, although, the latter two matters will be of little significance.
I was asked to consider whether or not I would give you the opportunity for the possibility of a longer period on parole than would be usual. I do not regard that as appropriate in your case and in particular at your age. I will give you the opportunity to be on parole for two years, which is the period which will best serve your interests and the interests of the community.
I had raised the question of prevalence with the parties. It was not possible to take that aspect any further, but it seems to me examples of this offending are coming before this court more often and that in the future the question should be addressed. I have had no regard to it for the purpose of sentencing you.
Cameron Staples, you will be sentenced to be in prison for nine years, and I fix a period of seven years before you will be eligible for parole.
Pursuant to s 6AAA of the Sentencing Act 1991 I indicate that had it not been for your plea of guilty, I would have sentenced you to be in prison for 11 years, with a non-parole period of nine years.
I declare that you have served 490 days by way of pre-sentence detention.
I direct that the above indication and declaration be entered in the records of the court.