Director of Public Prosecutions v Wilson
[2021] VSC 768
•23 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0183
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EVANDER MICHAEL IAN JAMES WILSON |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Mildura |
DATE OF HEARING: | 22 November 2021 |
DATE OF SENTENCE: | 23 November 2021 |
CASE MAY BE CITED AS: | DPP v Wilson |
MEDIUM NEUTRAL CITATION: | [2021] VSC 768 |
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CRIMINAL LAW – Sentence – Child homicide – Criminal negligence – Angry and frustrated father shook and bounced 6 month old baby up and down to stop him crying – Baby’s head was unsupported at the time – Death caused by head trauma – Early plea of guilty during the COVID-19 pandemic – Offender aged 20 at time of offending – Long criminal history – Bugmy considerations – Harshness of prison conditions – Sentenced to 8 years and 6 months’ imprisonment, with a non-parole period of 5 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
| For Mr Wilson | Mr S Andrianakis | Rebecca Boreham Barrister & Solicitor |
HER HONOUR:
On Saturday, 11 April 2020, you killed your 6 month old son, Jakobi, by holding him under the arms and shaking and bouncing him, causing fatal head injuries.
In March 2018, you began a relationship with Jakobi’s mother, Chelsea Smith. You moved in together later that year. Jakobi’s older sister was born in January 2019. Jakobi was born, very prematurely, in October 2019. Jakobi did not return home from hospital until January 2020. You and Ms Smith were both very young; at the time of Jakobi’s death, she was 18 and you were 20 years old.
During your relationship with Ms Smith, you subjected her to family violence, including physical violence in front of the children.
On the evening of 11 April, you were at home with your family. Your daughter was playing in the lounge room, and Ms Smith was nursing Jakobi, who was asleep.
Ms Smith ordered some pizza and soft drink. The pizza was delivered without the soft drink. That upset you, and you made Ms Smith call the pizza restaurant again. When she told you that the restaurant had said that no drink had been ordered, you got angry at her and punched her.
Ms Smith put Jakobi down; she did so because she was scared you were going to hit her again and cause her to drop him, or that you might hurt Jakobi while assaulting her. You forced Ms Smith onto the ground, dragged her by the hair, and punched her several times in the ribs and stomach. When she got up, Ms Smith stayed in the lounge, because she was concerned about Jakobi, who was sitting in a car seat on the floor of the lounge and had started crying.
You picked Jakobi up and lay him on the couch next to you. He was still crying. Ms Smith asked you to pass him to her, so she could comfort him. You did not respond.
Eventually, you picked Jakobi up, held him under the arms and sat him on your lap. You then shook him, and bounced your legs up and down. You were not supporting his head while you did this, which caused his head to flop around. He continued to cry, as you kept bouncing him up and down. At one point, his head hit your knee. He was still crying when you put him back in the car seat.
Ms Smith tried to calm Jakobi with a bottle, but he would not take it. She put a dummy in his mouth, but he spat it out. Jakobi then went silent and closed his eyes.
You talked to Jakobi, but he did not respond. You picked him up and he was floppy. He was unresponsive when Ms Smith touched him. He started to turn pale in his face and body. At this point, Ms Smith became upset and started panicking, because she realised something was wrong.
You lay Jakobi on the couch, and listened for breathing. Ms Smith called 000. The operator said to remove Jakobi’s clothes and sit him up, which you both did. Jakobi gasped for air every now and then. Acting on the operator’s instructions, you and Ms Smith performed CPR until ambulance officers arrived. The ambulance officers tried to resuscitate Jakobi, before rushing him to hospital. Jakobi died 45 minutes after arriving at hospital, despite further attempts to save him.
Jakobi’s death was initially treated as a case of ‘unexplained death’.
Five days later, you and Ms Smith were questioned by police about Jakobi’s death. You gave a ‘no comment’ record of interview. Initially, Ms Smith did not disclose to investigators how you had handled Jakobi. However, a couple of weeks later, she told them what had really happened.
On 5 June 2020, you were arrested and charged with murder. At the committal hearing on 14 July 2021, you pleaded guilty to child homicide, after the murder charge was withdrawn.[1]
[1]The maximum penalty for child homicide at the time of this offence was 20 years’ imprisonment.
I turn to consider the seriousness of your offending.
The prosecution case is put on the basis of criminal negligence, rather than an unlawful and dangerous act. I accept that you did not intend to hurt your son, who you loved; but it does not take a great deal of force to harm a baby as young and vulnerable as Jakobi.
Your offending against Jakobi took place in the following context. You and Ms Smith were very young, inexperienced parents, with two children under the age of 15 months, and a new puppy in the house. The first state-wide lockdown of the COVID-19 pandemic had been in place for about a fortnight, and you and Ms Smith were not coping well. The family was dependent on social services for help with food. You were spending your days taking drugs and playing on your Xbox.
The offending also took place against the background of your ongoing family violence. On this occasion, you got angry at Ms Smith, over the trivial matter of a bottle of soft drink. You got so angry that you assaulted her in front of your young children. You had not calmed down when Jakobi started crying. You did not hand Jakobi to his mother, so she could calm him. You were still worked up, and became increasingly frustrated at Jakobi, when he would not stop crying.
The offending was spontaneous, and the total period in which you were shaking and bouncing Jakobi was less than a minute.
After Jakobi went limp and quiet, you did make genuine efforts to help him. You and Ms Smith both engaged with emergency services, and followed their instructions, in an attempt to resuscitate him.
Before I consider your personal background, I want to say something about the effect your actions have had on Ms Smith and her family.
Ms Smith is haunted by her memories of the night she lost Jakobi, and still experiences flashbacks, nightmares, and trouble sleeping. She blames herself for not leaving the violent relationship sooner. She regrets that she will never get to see Jakobi take his first steps or speak his first words, watch him grow up with his sister, or attend his first day of school. Ms Smith feels that her dream of having a happy family has been torn apart.
Ms Smith also described the effect on Jakobi’s sister, who was present during the incident. Jakobi’s sister gets upset, and does not understand why Jakobi is not here anymore.
Other members of Ms Smith’s family have spoken of their anger, heartbreak and grief. They wish they could have done more to help Ms Smith and her children escape your violence earlier.
There is nothing this court can say or do that will bring back Jakobi, or heal the grief and pain caused by your actions. The sentence I am going to impose is not a reflection of the worth or value of his life; rather, it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the victim impact statements.
I turn to consider your personal circumstances. You were born in the Dubbo region of NSW in March 2000. You are a Wankamurra man, and your traditional country is in Bourke, NSW. You are one of five children born to your parents, who separated when you were about 2 years old.
You were born 12 weeks premature, and were kept in hospital for most of the first year of your life. Your younger brother died in his sleep as a baby, when you were 3. Your older brother died from stab wounds when you were 12. Your two sisters are still alive, and in contact with you.
Your father was violent towards his family, and was in and out of prison throughout your childhood. When he got out of prison, he would come and take his children from wherever they were staying at the time, and keep them until his next term of imprisonment.
Your mother had mental health issues, abused drugs and alcohol, and was unable to look after her children.
You were moved backwards and forwards, between different family members, in Mildura and north-western NSW. Your schooling was limited and inconsistent. You had some periods of stability in your childhood, such as when you were living with either of your grandmothers, but they were interrupted by your father coming and taking you away.
You started using cannabis when you were about 9, having been exposed to it in utero and in childhood by your mother. You started abusing alcohol when you were about 10. You started using methamphetamine when you were about 15, and were using it heavily and regularly by the time of this offending.
As a child and teenager, you would frequently self-harm, by cutting yourself, or banging your head against objects with sufficient force to break your skin.
Your teenage years were marked by periods of drug abuse, homelessness and incarceration. You have a long history of involvement with child protection services over concerns about transience, criminal activity, lack of stability and safety, lack of adequate supervision, substance misuse and family violence. You were eventually placed in state care between the ages of 15 and 18.
You have an extensive criminal history, which began when you were 13. Many of your convictions are for theft and other property-related matters, as well as drug offences. However, you also have numerous convictions for violent offences, including intentionally causing serious injury, recklessly causing injury, assaults, carjacking, and the use and possession of various weapons. You have been in and out of youth justice centres on a regular basis, since you were about 16. On almost every occasion that you have been granted bail or a community based sentence, you have breached the conditions of the court orders.
Although you have some family members who still support you, you did not have the opportunity to grow up in a stable, family environment, with good role models, for any decent period of time. You were not equipped with the skills needed to raise a child. It seems that you and Ms Smith became parents at such a young age in an attempt to create the happy family you never had in your childhood.
As the High Court observed in the case of Bugmy,[2] childhood deprivation such as you experienced may be relevant to an assessment of moral culpability in two different ways. First, the fact that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence, because their moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. Secondly, an offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. I accept that your moral culpability is reduced by reason of those matters.
[2]Bugmy v R (2013) 249 CLR 571.
However, your inability to control your violent response to things that frustrate you also increases the importance of community protection and specific deterrence in this case.
There are a number of other matters that are relevant in sentencing you.
As mentioned earlier, you pleaded guilty to child homicide at the contested committal on 14 July 2021. This is an early plea.
You are entitled to a discount on the sentence to be imposed upon you, in recognition of your guilty plea and its utilitarian value. The utilitarian value of the plea is particularly high during the pandemic, when jury trials have been suspended and delayed. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses and family have been spared what would have been a traumatic trial for all concerned. In particular, the fact that you pleaded so early spared Ms Smith from being cross-examined at the committal.
The issue of remorse is not straightforward in your case. On the one hand, as soon as you and Ms Smith realised that something was wrong with Jakobi, you immediately did all that you could to assist him. You still have nightmares about Jakobi’s death, and take medication to try to help you sleep. Your plea itself also demonstrates a level of remorse. On the other hand, there was a period between about April and June last year when you went around telling family members and youth justice workers that Ms Smith had killed Jakobi by dropping him, and you were just taking responsibility to save her from being sent to prison. You also sent a series of abusive messages to Ms Smith and others, threatening her with violence when you got out of prison. Your behaviour in making those statements and threats was cowardly and disgusting, and inconsistent with any genuine remorse at that particular time.
Your age is also a relevant consideration in sentencing you. You were 20 at the time of the offending; you are now 21.
The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. One of the important reasons underlying these principles is that young people may be more prone to acting in a spontaneous and ill-considered fashion, when their brains have not finished maturing.
However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.
The offence of child homicide is a serious offence. Given your personal background and your criminal history, it was not suggested that your prospects of rehabilitation are anything other than guarded. However, it cannot be said that you have no prospects of rehabilitation, particularly if you are provided with appropriate programmes and supports whilst in custody and on parole. Your age remains an important consideration in sentencing you.
You have recently been appointed a unit billet, a position with some responsibilities. You keep in regular contact with your maternal grandmother, your father, and one of your sisters.
If you want to stay out of prison in the future, you need to seriously address your alcohol, substance abuse and anger management issues, and the various unresolved traumas which underlie them. Your prospects of rehabilitation would be greatly enhanced by you spending a considerable period of time on parole, learning to live in the community under the supervision of the Adult Parole Board. Both the community and you would benefit greatly from that opportunity. Whether or not you will be granted parole will no doubt depend on how you behave while you are in custody.
Much of your time on remand has been spent in harsher than usual prison conditions, for the following reasons.
The pandemic has imposed a number of restrictions on all prisoners, including a reduction in the availability of training and educational programs, and cancellation of contact visits with family and friends. You have spent a total period of almost one month in quarantine conditions, in connection with three court appearances. There have also been several lockdowns in your unit, due to other prisoners having contracted COVID-19.
Because of the nature of your offending, you have been held in protection for most of the time since your arrest, with serious restrictions on the time you can spend out of your cell. You have also had several short periods in management units, due to the way you responded to other prisoners taunting you about being a child killer. The prosecution accepts that it is likely that you will need to be held in protection for the foreseeable future, given the nature of the offending. Although there is no evidence as to the particular conditions and restrictions that might apply, I accept that you are likely to be held in harsher than usual conditions going forward.
Both sides referred me to a number of other child homicide cases. However, current sentencing practice is just one of the many factors to which I must have regard in sentencing you. It is necessary to have regard to the particular circumstances of the offence, and the factors personal to you, in determining the appropriate sentence.
Evander Wilson, for the offence of child homicide, I sentence you to 8 years and 6 months’ imprisonment. I fix the period of 5 years and 6 months before you become eligible for parole.
Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 11 years, with a non-parole period of 8 years.
I declare that the period to be reckoned as already served under this sentence is 499 days, not including today’s date.[3] I direct that there be noted in the records of the court the fact that such a declaration was made and its details.
[3] That period of 499 days excludes a period in which you were serving a sentence of 3 months’ imprisonment for other offending. I have had regard to the period served for that other sentence in considering principles of totality.
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