DPP v Arney
[2006] VSC 438
•27 November 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1515 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID SCOTT ARNEY |
---
JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2006 | |
DATE OF SENTENCE: | 27 November 2006 | |
CASE MAY BE CITED AS: | DPP v Arney | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 438 | |
---
Criminal Law – Sentencing – Manslaughter and recklessly causing serious injury – Death of 5-month-old daughter resulting from one or more punches causing ruptured bowel – persistent punching in prior weeks – Head sentence of 9 years – non-parole period of 5 years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Elston S.C. | Office of Public Prosecutions |
| For the Accused | Mr M. G. O’Connell | Slades & Parsons |
HIS HONOUR:
David Arney, you have pleaded guilty to two offences, recklessly causing serious injury and manslaughter. The manslaughter arose from your having killed your daughter Rachael Joy Arney on 15 December 2005. The recklessly causing serious injury arose from your having inflicted injuries on your daughter over a period of some weeks prior to 15 December. In December, your daughter was 5 months old, having been born on 7 July 2005. Her mother was your wife, to whom you were married on 13 March 2005. You had met your wife in late 2003. A strong inter-dependant relationship developed. It persists to the present time despite the death of your daughter. The circumstance that there remains strong and loving bonds between you and your wife, and between you and your family, makes the sentencing of you a particularly difficult exercise. Objectively, your crimes were monstrous, and deserve stern punishment. To those with a deeper understanding of you, and how you came to do what you did, the crimes are seen in a different light, and merit leniency.
The pregnancy of your daughter was not planned. The pregnancy was not unexpected, but it came at a time when you and your wife were struggling financially. You were 23, and she was 3 years younger. An abortion was not contemplated. Both you and your wife have strong religious convictions and strong family links. Because of the financial problems, the two of you were living in a bungalow at the back of a house owned by your wife’s mother. The nature of the pressures on you and your wife was such as to cause you particular stress. You were keen to work, but lacked the kind of qualifications to be sure of a well-paid job. Having the use of your mother-in-law’s bungalow helped financially, but it created the potential for well-meant but not always appreciated supervision. Your wife was better qualified, but the pregnancy reduced her capacity to work. When she could work, it meant that that the care of your daughter was more frequently left in your hands. Those pressures led to you becoming more depressed, and to you at times becoming angry and frustrated. At times, you resented the circumstance that your wife had less time for you because of the need for her to care for your daughter.
There was a further major problem. That was your disposition to become easily aroused to fits of anger. Your wife noticed the showing of that anger most particularly when you were driving a car. Regrettably, you also experienced that anger at times when you were alone with your daughter. At times, your daughter had her need for attention at times inconvenient to you. Always when others were around, you carried out the role of the caring father. When you were alone with your daughter, things were different. There were a number of occasions when your anger got the better of you, and you took your anger out on your daughter by punching her. When you did so, you aimed for the stomach area. Your thinking was that in that area there was less likely to be seen the signs of your punches. Apart from your admitted punches, there was more than one occasion when your daughter suffered injuries from falls. Although your wife and others had noted bruises to your daughter, your role in causing them was not suspected.
On 14 December 2005, your daughter was left in your care for some hours in the middle of the day, while your wife was working. Your daughter showed signs of distress and vomited in a way that caused you concern. You took her early to where you were to collect your wife after work. Medical attention was not sought on that day, although your daughter continued to show signs of distress. That night, you administered some Panadol and your wife otherwise to your daughter. The next morning, around 9 a.m., when your daughter did not respond to attention, the ambulance was called. Around 10.30 a.m. she was pronounced dead. You showed an understandable grief reaction. You co-operated with the police and provided a statement which contained a history of your care of your daughter. In that statement you admitted the odd mistake, but gave no indication of anything seriously wrong. Later, during that day, the preliminary findings made by Professor Cordner at the autopsy carried out on your daughter became known. Initially, when pressed by the police to explain how your daughter might have suffered some of the injuries found at the autopsy, you expressed a degree of indignation that you should be asked. You then provided a second history, which supplemented the first in significant ways. In most respects, your second, more comprehensive account does fit in with the autopsy findings. In some respects it does not. Your daughter’s death resulted from peritonitis arising from a ruptured jejunum, which is part of the bowel. Such a bowel injury has often been seen to be the result of short, sharp punches to the abdomen. The autopsy findings also included that your daughter had a fractured skull and several fractured ribs. Dr Cordner was troubled at reconciling the character of the fractured skull with your account of a fall onto a clothes cabinet drawer, or against the slats of a cot. I am likewise troubled, but must sentence you on the basis of accepting your account. While it is clear that you did not intend to kill or really seriously injure, your actions in punching your daughter and otherwise mishandling her merit strong denunciation. The courts have to be seen as placing a high value on the sanctity of life.
I have read the victim impact statements placed before the Court. One is from your wife. The other is from her mother. Your wife has indicated a strong preference that her privacy be respected. She clearly has experienced enormous grief at the loss of your daughter. She clearly loved your daughter deeply and misses her enormously. What is also clear is that she still expresses strong feelings of love for you.
I turn to your background. You were born in October 1981 and are now 25 years of age. You are the second of three children born into a caring and a law-abiding family. Neither other members of the family, nor you, have had any trouble with the law before. I have read closely the letters lodged with the court from your parents and other members of your extended family. The two letters from your parents helped to illustrate that many of the problems that stressed you last year can be traced to problems which arose in your early years at school. You were bullied. You retreated into your own world. You chose not to seek help from others. You fared better after a change of schools. Your parents could see some warning signs, but you preferred not to seek help from them. You chose not to take advantage of the help that your parents would willingly have provided. The early school experiences left you fragile and vulnerable to stress. Your failure to seek help meant that you were failing to recognise the inappropriateness of your self-taught method of dealing with the anger brought on by stress.
I have had the benefit of two reports from Dr Sullivan, psychiatrist. His ultimate diagnosis was of your having an adjustment disorder with depressed and anxious mood. He has noted the extent to which you have suffered from depression. He has also noted that you are not coping well with prison life. That means that you are likely to have to spend the rest of your time in prison in protection. That circumstance will reduce the availability of some courses. Other conclusions of Dr Sullivan include that your mood symptoms would hopefully resolve after sentencing, that there is a significant risk of deliberate self harm in the longer term, and that you would benefit from more education, from counselling and from anti-depressant medication. While general deterrence must still remain a significant consideration in my sentencing you, it can be moderated to a limited degree by your mental state as at the time of the offences.
I would again note that, on the plea, I had placed before me many commending letters from members of your extended family and others. They seemed to find it hard to believe that your actions could have led to the death of your daughter. They have known you only as a kind and patient man and as an apparently caring father.
There are several mitigating factors that I must take into account in your favour. I will repeat my reference to some and will list others. You have pleaded guilty and have indicated that that would be the case from an early stage. You have no prior convictions. You are remorseful. You were suffering from a depressive illness. You are likely to spend your time in prison on protection. You have strong support in your immediate family and beyond. Your prospects of rehabilitation appear to be very good.
Having noted the mitigating considerations, I must restate the obvious. From an objective viewpoint, how you treated your daughter was abhorrent. Your violence towards her was both severe and persistent. Young children are vulnerable to an extreme degree. They are helpless. Violence against young children by those in a position of protection and trust can only be denounced in the strongest possible terms. Before and after the plea hearing I have reviewed a series of comparable sentences. Yours are more serious than those imposed where there was a mere momentary loss of self-control. I have no option but to impose a long prison sentence, allowing appropriately for the need to provide moderate cumulation. I do accept that the period available for parole should be for you longer than is routinely the case. That would enable you to do more work in the community on anger management to reinforce whatever is available in prison.
I have signed the order as to the taking of a forensic sample which was sought and not opposed. I am required to inform you that a member of the police force may use reasonable force for the procedure to be conducted.
I declare 348 days of pre-sentence detention and direct that that be entered in the records. On the count of the manslaughter, I impose a sentence of 7 years. On the count of recklessly causing serious injury, I impose a sentence of 4 years, cumulative as to 2 years on the 7 years imposed for manslaughter. The effective head sentence is 9 years. I fix a non-parole period of 5 years.
0
0
0