DPP v Kesic
[2000] VSC 420
•28 September 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1438 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY STANLEY KESIC |
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JUDGE: | Cummins, J. | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 18 and 19 September 2000 (at Melbourne) | |
DATE OF SENTENCE: | 28 September 2000 (at Wangaratta) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Gary Stanley Kesic | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 420 | |
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Criminal law – sentencing – manslaughter – plea of guilty – unlawful and dangerous act – violent shaking of two year nine month child by 40 year old stepfather – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of | R. Read | OPP |
| For the Accused | J. Smallwood Q C | Victoria Legal Aid |
HIS HONOUR:
Mr Kesic, you have pleaded guilty to the manslaughter at Melbourne on Thursday 15 July 1999 of Jed Anthony Britten. Jed died that day in the Royal Children's Hospital in his mother's arms. The injuries which caused Jed's death were inflicted by you, Mr Kesic, in Wodonga the previous day. At the time, you were 40 years of age, large, strong and powerful. Jed was two years nine months of age, small, sick and dependent.
You killed Jed by a violent and severe shaking inflicted by you in anger because of the poor child's sickness and lack of toilet training. It was not the first time you had assaulted the child, but it was the last because the child, from your angry assault, fell into deep unconsciousness from which he would not recover.
Having caused the child's unconsciousness, you took him to a local doctor's surgery. Those doctors immediately commenced medical treatment of the child. An ambulance urgently was called by them. The unconscious child was transferred by ambulance to the Albury Base Hospital Intensive Care Unit. Further emergency treatment of the child was there administered, all by dedicated professionals. The only person who knew what had happened to the child was you. The child, aged two years nine months, was deeply comatose. The doctors looked to you for a history to help in the emergency treatment of the child. Instead of telling them the truth in order to enable medical treatment to be relevantly and rapidly effected, you told the doctors lies. To help yourself. You did nothing to help the child.
The child was then transferred by air ambulance to the Royal Children's Hospital, Melbourne where further emergency treatment was attempted; all to no avail. The child's mother who was serving a short prison sentence for heroin related offences was permitted to attend the hospital. Associate Professor Tibbals, Deputy Director of the Intensive Care Unit of the Royal Children's Hospital, stated that on the afternoon of Thursday 15 July 1999: "I informed his mother that his brain was dead. After allowing time for her to be with Jed and after determining that it was not possible for his biological father to be at his bedside, I discontinued mechanical ventilation at 1815 hours while in his mother's arms. Cardiac activity was absent at 1825 hours." Thus it was that the child died never having regained consciousness from the assault you inflicted upon him in Wodonga the day before.
Jed's mother Leanne Britten, then aged 33, had three children: Jessie then aged seven, Hope then aged four, and Jed two years nine months. Jed was born on 16 October 1996. You had commenced living with Leanne, at Leonard Court, Wodonga in February 1999. You brought your own son Tyrone, then aged 12, with you. You all resided there as a family. Unfortunately, Leanne had a heroin problem, committed some heroin related offences and on 15 April 1999 was imprisoned for those offences. You remained at the premises undertaking the care of the four children. Leanne was still in gaol in July 1999 and thus it was that you were in charge of the four children at that time. The fact that you undertook the care of the four children stands to your credit, Mr Kesic; but it brought with it responsibility to care for them, and your preparedness to undertake their care in their mother's enforced absence in no way justifies or excuses your violent conduct towards a defenceless two year nine month old child. Jed, at the time of his death, weighed 15 kilograms and was 89 centimetres in height.
You were 40 years of age, having been born on 3 July 1959. Leanne was 33 years of age, having been born on 6 January 1966. Tragically, Jed's mother Leanne, upon later release, died this year, apparently of a heroin overdose. So Jessie and Hope have lost their mother and their younger brother, and your own son Tyrone faces his youth with his father in prison.
When you awoke on the morning of Wednesday 14 July 1999, you rang the medical surgery at Wodonga at 8.30 a.m. and made an appointment for yourself at 10.40 p.m. That was because you were on slow release morphine for a painful neck injury and were due for a further prescription of that medication. Jed awoke at 7.00 a.m. He had been sick the previous days and inspection of the premises by crime scene officers showed vomit in the premises and defecation in the bathroom and in the clothes of Jed which demonstrate the child's illness and inability to manage his own toilet position. You had a shower, found that the child was again soiled and in anger grabbed the child, shook him repeatedly and severely, probably during which the back of the child's head struck the floor, and the child immediately lost consciousness. You took the child to the surgery, arriving there with the child in your arms. The child was immediately attended to medically by a number of the doctors at the Wodonga Central Medical Clinic. Their professional attention and that of the doctors at the Albury Base Hospital is to be commended.
Whilst the medical attention was being given to the child at the Wodonga Central Medical Clinic, a nurse at that clinic asked you what had happened and you said that the child was sitting in the bath and he "just went limp". You said "He has had the measles and he has done this before". In the ambulance when the child was being taken the Albury Base Hospital, the ambulance officer asked you: "What happened today?". You replied something like the child was on the couch and sick and you took him into the bath. You also said something about how the child had been out playing with his sister and maybe he had fallen and hit his head. When the child was being treated at the Albury Base Hospital Intensive Care Unit, a registered nurse there asked you: "What happened to the child for him to be in this state to come here?", and you replied: "I was concerned about him this morning because I thought he had the measles. I'd made an appointment with the doctor and I was getting him ready to go to the doctor. I was in the shower and he was in the bath. About five minutes later when I got out of the shower, he was lying in the bath. When I got him out of the bath, he was wobbly on his feet". You indeed had said also that you had walked the child; a demonstrable falsehood, as the child became unconscious immediately upon your severe assault upon him.
You also were questioned by the doctors. Dr Andrews of the Wodonga Central Medical Clinic first, and with his other medical partners, attended the medical position of the child. To him you said that the child had been unsteady for the last two or three days, that you put the child into the bath and went to another room and when you returned to the bathroom you found the child non-responsive. To Dr Rennick, a distinguished paediatrician at the Albury Base Hospital Intensive Care Unit, you told him that the child had been vomiting on and off for the last couple of weeks and was worse over the last couple of days. Over the last week, Jed's left eye had partially closed over. In response to the doctor's further inquiry, having informed you of the critical position of the child, the doctor wanting to know if the child could walk in order to establish what condition the child was in, you initially said Jed walked, but soon after said you were unsure and could not remember. You also said that Jed's head had clashed with yours whilst you were carrying him. You said that after Jed was limp you shook him and there was no response. In truth, he became limp because of your violent shaking of him. The doctor told you that he thought Jed was going to die. None of this caused you to tell the doctors the truth that they needed to care for this deeply comatose little child.
The child was removed by air ambulance to the Royal Children's Hospital in Parkville. Dr Geoffrey Klug, Senior Neurosurgeon, examined the child on the Thursday morning 15 July at 8.30 a.m., found that the child had a very severe brain injury and that the injury had resulted from severe, and in all probability, repeated shaking of the child. Dr Klug said that the injury would be associated with an immediate loss of consciousness. A distinguished ophthalmologist, Dr James Elder, Director of the Department of Ophthalmology at the Royal Children's Hospital also on that Thursday examined the child in his comatose condition, in particular an intense examination of the child's eyes. Examination of the retina revealed widespread intra and peritoneal haemorrhages and macular oedema. In the right eye a circumferential retinal fold was identified. Dr Elder said: "In my opinion these retinal changes are consistent with a severe and violent shaking injury. The retinal fold is, in particular strongly suggestive of this." Dr Elder concluded: "The eye injuries documented above are not consistent with a fall or blow to the head such as may occur if a child fell backwards and struck the head on a hard surface".
Dr Hugo Gold also examined the child in the last hours of his life at the Children's Hospital. He found the child was in a deeply comatose state requiring assisted ventilation. The child had numerous injuries including bruising to the forehead, abrasions to the chest, bruising at the base of the penis, and near his knee. Dr Gold noted that an ophthalmological examination showed retinal haemorrhage. The CT scan showed evidence of severe brain damage, severe brain swelling and a residual or subdural haemorrhage. There was no evidence of any fracture in the child's skull or bones.
As I have said, the evidence of Associate Professor Tibbals stated that the child ultimately died at 6.25 p.m. that Thursday afternoon 15 July 1999 at the Royal Children's Hospital.
A number of doctors attended the body of the child post-mortem. A distinguished pathologist, Dr Matthew Lynch, conducted the autopsy on the body of the child the next day, Friday 16 July at 10 a.m. The cause of the death was head injury. There was no fracture and no evidence of haemorrhage in the strap muscles of the neck. The right eye showed retinal haemorrhage involving multiple layers with oedema and polymorphs. Dr Lynch noted a number of injuries of a non-accidental type, bruises of various ages and at various sites, in particular disruption of the upper and lower fraenulum gum on the inner mouth, and penile injuries. He again noted the retinal folds eloquent of severe and violent shaking. He again noted that neuropathological opinion revealed subdural haemorrhage that was both recent (hours to days) and older (several days or greater). Dr Lynch in careful evidence on the plea went through the critical injuries to the child and excluded a number of injuries which could have occurred to the child in the normal way of young children: injuring their lower legs; in one case as is evident from your son Tyrone's statement the child accidentally was hit on the head with a cupboard door being opened; on another occasion the child put his hand on a heater. All those matters are, unfortunately, part of the life of children growing up and you are not to be held responsible for any of them.
However, there are some particular and serious matters which are directly attributable to your mistreatment of the child. Plainly, the major head injury is the first. Next, the tear to the upper gum and the lower fraenulum also is another. Injury by blunt trauma to the right chest is another and, in particular, the penile injury to which I shall come in a moment.
Dr Kenneth Opeskin, a Neuropathologist, examined the child's body on 17 August 1999. He, again, noted the retinal haemorrhages involving multiple layers; sub-retinal and pre-retinal haemorrhages; retinal oedema and polymorphs. He noted intra-dural, sub-dural and subarachnoid haemorrhage and haemorrhage in soft tissues around optic nerves. Dr Opeskin concluded that the features just described are in keeping with two episodes of head trauma: acute head trauma in addition to head trauma weeks old. Finally, Dr David Wells, Head of the Division of Clinical Forensic Medicine and Honorary Physician to the Child Protection Unit, examined the body of the child and on 16 July 1999 came to this conclusion: the injuries being the injury to the base of the penis which he describes in that report are a manifestation of blunt trauma to the genital region sustained in the day or days prior to the Children's Hospital examination. He found that the penile injury was most likely to have been produced by a forceful grasping of the penis, resulting in stretching and tearing of the skin at the base of the penis. There was also an abrasion on the scrotum and laceration on the perineum which are relatively non-specific, but grasping produces such an injury. That injury, in particular, as well as your treatment of the child on the morning of Wednesday 14 July demonstrates your wrongful and violent toilet training of this unfortunate child.
As a consequence of the findings of Dr Rennick of Albury, police officers interviewed you at the Wodonga CIB Office on Wednesday, 14 July 1999, commencing at 3.23 p.m. At that time Jed was deeply comatose, but still alive. A further interview, this time by Homicide Officers, was conducted at Wodonga the next day commencing at 12.54 p.m. and concluding at 1.49 p.m. As I have stated, Jed died later that afternoon.
You were later charged with his murder. The Director after proper consideration has now presented you on the charge of manslaughter as there is not evidence of the necessary intent or recklessness for murder. In the interviews which you had with the police your answers were untruthful as to your treatment of the child, even in one answer saying that one of the other children Jessie was "always a bit rough with him" (Question 312). At no time did you accept your serious responsibility in the matter. You gave no evidence at the committal or on the plea about the cause of the child's injuries.
As I have said, on Wednesday morning 14 July at 8.30 a.m. you rang the surgery for the administration of your fortnightly medication. You had medically prescribed sustained release morphine as a result of a 1996 injury which resulted in disc degeneration in your neck, and pain in your neck and arm. You said in the interview that you had used up your last medication on the night before (Question 319) and you rang for an appointment for yourself accordingly.
I take into account the fact that you were medically being treated at the time and that you were in pain from that injury, and I take into account the review of that matter helpfully summarised in Exhibit 1, the report of Dr Eugene Tuck, Director of Medical Services at St Vincent's, of 26 September 2000.
Care persons had been attending at times at the premises in Wodonga. An officer of a local family day care saw Jed when she was picking up the children on 24 June 1999. She noted there that Jed was very quiet. She felt his cheek and left side of the neck, and felt a hard lump about the size of a 20 cent coin and when she looked closer she noticed bruising under Jed's chinbone. The bruising covered most of the underside of Jed's chin and was a blue colour which appeared to have faded. There is also a statement of an officer of the Department of Human Services Child Protection. The officer last saw Jed on 10 June. The officer attended the premises on 29 June, but you said that Jed was asleep in his room and the officer did not physically see the child on that day. I have read the report and the case note of the officer made on 23 July 1999 and I am not assisted by that case note or by the statement of that officer in view of the demonstrable condition that the child was found in.
I have regard to the victim impact statements filed in this matter which are moving and impressive documents. Jed's death has afflicted and will continue to afflict his family.
I take into account in your favour, as I have already stated, the fact that you were prepared to undertake the upbringing of the three children of Leanne, as well as, of course, of your own; the fact that the child had been ill and that you were under pressure from that; and the fact that you were also in pain yourself from your own injury. I put aside completely a number of the injuries to the child which cannot be attributed to you either by direct or inferential proof beyond reasonable doubt.
I take into account that you have pleaded guilty to manslaughter which has saved the victims of the crime who are living, further trauma by giving evidence in a trial. However, the case against you was overwhelming.
I take into account your lack of prior convictions.
However, there are a number of seriously aggravating circumstances in this case. First, you were in a position of trust. Second, you were in a position of power which you abused. The child was totally vulnerable in your hands. Next, you are and were an intelligent man who had access to help. You knew the doctors. You knew the surgery well. You had access to the Department of Human Services. You were not a person lacking in intelligence who did not know where to turn. You are not a person who lacked competence and who was unable to find a way out of personal difficulty.
Finally, a matter of significant moral culpability on your behalf is that when the child needed your help of a truthful history to those doctors, you lied to the doctors to protect yourself.
Of the principles of sentencing which are applicable to this case, the first principle, condemnation, applies to you. Your conduct is condemned. Next, the principle of punishment applies to you. You are to be punished for your conduct. Next, the principle of general deterrence especially applies to your case. Persons in positions of trust and of power over innocent children must be deterred from abusing that trust and power. Next, specific deterrence applies to you, so that you are to be deterred from venting your anger on innocent persons. Reformation is also applicable to you as it is in all cases, and I take it into account as well.
You have served 442 days in pre-sentence detention. Pursuant to s.18(4) Sentencing Act I declare that period of 442 days already served under the sentence I impose and I so certify.
Mr Kesic, for the manslaughter of Jed Britten I sentence you to 10 years' imprisonment. I direct that you serve a minimum term of seven years' imprisonment before being eligible for parole.
Remove Mr Kesic.
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