Leach v The Queen

[2008] NSWCCA 73

New South Wales
Court of Criminal Appeal

CITATION:

LEACH v THE QUEEN [2008] NSWCCA 73

HEARING DATE(S):

5 December 2007

 
JUDGMENT DATE: 

1 April 2008

JUDGMENT OF:

Basten JA at 1; Hidden J at 22; Barr J at 52

DECISION:

(1) Grant leave to appeal.

(2) Allow the appeal and quash the sentence passed by Hulme J on 27 April 2007.

(3) In lieu thereof the applicant is sentenced to imprisonment for 6 years, comprising a non-parole period of 3 years and 6 months, commencing on 15 July 2005 and expiring on 14 January 2009, and a balance of term of 2 years and 6 months, commencing on 15 January 2009 and expiring on 14 July 2011.

CATCHWORDS:	CRIMINAL APPEAL – appeal against sentence – exercise of sentencing discretion – when appellate intervention warranted – demonstration of error or manifest excess - NON-PUBLICATION ORDER – child victim deceased at time of proceedings – Children (Criminal Proceedings) Act 1987 (NSW) s 11 - SENTENCING – appeal against sentence – manifestly excessive – manslaughter of child – applicant with intellectual disability – anxiety – depression – effect of intellectual disability on assessment of moral culpability – effect of intellectual disability on assessment of general and specific deterrence – consideration of prior offences – previous good character – good prospects of rehabilitation
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 (NSW), s 11 Constitution (Cth), s 73 Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
CATEGORY:	Principal judgment
CASES CITED:	Courtney v The Queen [2007] NSWCCA 195; 172 A Crim R 371 DB v Regina [2007] NSWCCA 27; 167 A Crim R 393 House v The King (1936) 55 CLR 499 The Queen v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 R v Blacklidge (12 December 1995 unreported) R v Elliott; R v Blessington [2006] NSWCCA 305; 68 NSWLR 1 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v PP [2003] VSCA 100; 142 A Crim R 369 R v Rowe [2007] NSWSC 300 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Storey [1998] 1 VR 359 R v Trevenna [2004] NSWCCA 43 R v Woodland [2001] NSWSC 416 Regina v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 Skinner v The King (1913) 16 CLR 336 Webb v O’Sullivan [1952] SASR 65 Whittaker v The King (1928) 41 CLR 230
PARTIES:	Benjamin Anthony Leach (Appellant) The Queen (Respondent)
FILE NUMBER(S):	CCA 2006/3757
COUNSEL:	A Francis (Appellant) M Hobart SC (Respondent)
SOLICITORS:	S O'Connor - Legal Aid Commission (Appellant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2006/2108
LOWER COURT JUDICIAL OFFICER:	Hulme J
LOWER COURT DATE OF DECISION:	27 April 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 429

CCA 2006/3757
SC 2006/2108

BASTEN JA
HIDDEN J
BARR J

1 April 2008

LEACH v THE QUEEN

Headnote

The applicant pleaded guilty to the manslaughter of his seven week old child. In the early hours of 13 July 2005, the child awoke and began crying. The applicant attempted to settle the child but she continued to cry. The applicant then sat on the child, who stopped crying and apparently stopped breathing. The applicant called an ambulance and attempted to revive the child, but she could not be resuscitated.

The applicant was sentenced by Hulme J to imprisonment for 7½ years, comprising a non-parole period of 4½ years and a balance of term of 3 years. The trial judge took into account on a Form 1 two prior offences of assault occasioning actual bodily harm in which the applicant had struck the child around the head. Psychological testing revealed that the applicant’s intellectual functioning and coping skills were extremely low and that at the time of the offence he was suffering from social anxiety and a mild depressive disorder.

The Court held, allowing the appeal:

(per Basten JA)

1. Where the child victim is deceased as a result of the criminal act, the purpose of the prohibition on publishing the name of the victim pursuant to s 11 of the Children (Criminal Proceedings) Act 1987 is by no means self-evident. As the judgment on sentence in the Court below is reported with the name of the applicant, it would be of limited utility and possibly inappropriate to anonymize the judgments in this matter by not referring to the applicant by name: [4].

2. The exercise of discretionary power by a trial judge will not be interfered with unless there had been a failure to exercise the discretion according to law or the exercise had wrongly applied principle or was based upon a mistake of fact: [7].

Whittaker v The King (1928) 41 CLR 230; House v The King (1936) 55 CLR 499, considered.

Skinner v The King (1913) 16 CLR 336; Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 82 ALJR 82; R v Elliott; R v Blessington [2006] NSWCCA 305; 68 NSWLR 1, referred to.

3. The fact that minds might reasonably differ as to the appropriate sentence in all the circumstances demonstrates that there will be a range within which a court of criminal appeal will not interfere on the grounds of manifest excess or inadequacy. It was necessary for the applicant to demonstrate error or manifest excess in the original sentence and that some lesser sentence was warranted in law: [9].

DB v Regina [2007] NSWCCA 27; 167 A Crim R 393, considered.

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, referred to.

4. In some circumstances the existence of a causal connection between the mental disorder and the offence may reduce the importance of general deterrence and increase the importance of particular deterrence or of the need to protect the public. In relation to the latter effect, the present applicant was unlikely to re-offend and had excellent prospects of rehabilitation: [12].

The Queen v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581, applied.

R v Engert (1995) 84 A Crim R 67; Courtney v The Queen [2007] NSWCCA 195; 172 A Crim R 371, considered.

5. The psychiatric assessments of the applicant did not support an inference that he had sufficient insight into his prior losses of control in relation to the Form 1 offences to warrant a finding of serious moral failure. Once that factual inference is removed, the sentence must properly be reduced: [19]-[21].

(per Hidden J)

6. It was not open to the sentencing judge to conclude that the earlier assaults should have forewarned the applicant of the risk of his causing further harm to the child: [47].

7. This manslaughter was clearly low in the range of objective gravity of offences of its kind. The offence must be understood against the background of the applicant’s congenital intellectual deficits and his depression and anxiety at the relevant time. He is a man of previous good character, who demonstrated remorse and presented good prospects of rehabilitation. In all the circumstances, the sentence was higher than was called for and warrants appellate intervention: [48]-[50].

R v Engert (1995) 84 A Crim R 67; R v Hoerler [2005] NSWCCA 184; (2004) A Crim R 520; R v Woodland [2001] NSWSC 416; R v Rowe [2007] NSWSC 300, considered.

(per Barr J, dissenting)

8. It is difficult to confidently identify the limits of the judicial discretion in sentencing for manslaughter. The facts of the present case were singular and presented a difficult problem for the sentencing judge. The sentence imposed did not fall outside the proper range of the sentencing judge’s discretion: [53]-[54].

R v Blacklidge (NSWCCA, 12 December 1995, unrep); R v Trevenna [2004] NSWCCA 43, referred to.

CCA 2006/3757
SC 2006/2108

BASTEN JA
HIDDEN J
BARR J

1 April 2008

LEACH v THE QUEEN

Judgment

1 BASTEN JA: The applicant in this matter pleaded guilty to the manslaughter of his two-month-old child. At the hearing of the application for leave to appeal against sentence, counsel informed the Court that “this matter has been the subject of a non-publication order because of the age of the deceased”. The judicial officer responsible for the order was not identified, nor was the power pursuant to which it had been made. Rather, it was suggested that non-publication was required as a result of the prohibition in s 11 of the Children (Criminal Proceedings) Act 1987 (NSW).

2 Subsection 11(1) prohibits the publication or broadcast of “the name” of any of a class of persons, including:

“(b) any person who is mentioned in any criminal proceedings in relation to something that occurred when the person was a child,
(c) any person who is otherwise involved in any criminal proceedings and was a child when the person was so involved.”

The scope of the prohibition is expanded so that a reference to “the name of a person” is deemed to include a reference to “any information, picture or other material that identifies the person or is likely to lead to the identification of the person”: s 11(5).

3 Publication of the name of the applicant, together with identification of the victim as his child, is undoubtedly information likely to lead to the identification of the victim. Where the victim is alive at the date of the criminal proceedings, the purpose of the prohibition is readily apparent. Where the victim is no longer alive, as a result of the criminal act, the purpose of the prohibition is by no means self-evident. That raises a question as to whether the prohibition on publication or broadcast of the name of a person extends to the name of a person who is deceased at the time of the criminal proceedings.

4 The answer to this question is not beyond doubt. The section clearly envisages that the prohibition will continue to apply “even if the person is no longer a child, or is deceased, at the time of the publication or broadcast”: s 11(1A). In the present case, counsel for the Director of Public Prosecutions did not seek to argue that s 11 was inapplicable and it is not necessary to rule on the operation of s 11. However, the judgment on sentence in the Court below is reported at [2007] NSWSC 429, with the name of the applicant. Numerous cases involving punishment for the death of a young child or baby have been reported with no suggestion that s 11 operated: see, eg, Regina v Hoerler [2004] NSWCCA 184; 147 A Crim R 520, to which reference will be made below. It would be of limited utility and possibly inappropriate to anonymize the judgments in this matter by not referring to the applicant by name. Unless that step is required, principles of open justice favour use of the applicant’s name.

5 The Criminal Appeal Act 1912 (NSW) provides for a right of appeal to a person convicted on indictment, against the sentence passed, but only with leave of the Court: s 5(1)(c). The correct approach for the Court is identified in s 6, which, without reference to the need for leave, provides in sub-s 6(3):

“(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

6 In her written submissions before this Court, counsel for the applicant contended that, although no specific error could be identified in the approach taken by the sentencing judge, a consideration of the circumstances of the case demonstrated that the sentence imposed was manifestly excessive. However, at one point in the course of argument, she appeared to contend that s 6(3) permitted the Court to intervene to impose a different and less severe sentence, if warranted in law, despite the fact that no error appeared from the reasons and none could be inferred from the manifest excess of the sentence imposed. That submission would have involved a direct challenge to the authority of House v The King (1936) 55 CLR 499 at 504-505. Although House itself was concerned with the jurisdiction of the High Court under s 73 of the Constitution, the joint judgment also noted:

“Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts ( R v Sidlow (1908) 1 Cr App R 28 at 29). Lord Reading LCJ said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong ( R v Wolff (1914) 10 Cr App R 107). Lord Hewart LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice ( R v Dunbar (1928) 21 Cr App R 19 at 20).”

7 The joint judgment also referred with approval to the judgment of Isaacs J in Whittaker v The King (1928) 41 CLR 230 at 244-250, a case dealing with a Crown appeal against sentence under s 5D of the Criminal Appeal Act. That section stated in bald terms (as it does now) that the prosecution might appeal against any sentence pronounced by the court of trial in any proceedings and that this Court “may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”. Isaacs J concluded that the sentence which was “proper” was one which was just or proper “according to law”: p 243. But according to the principles established in relation to new trials, the exercise of a discretionary power by a trial judge would not be interfered with unless there had been a failure to exercise the discretion according to law or the exercise had wrongly applied principle or was based upon a mistake of fact. His Honour concluded that established practice with respect to statutory appeals in relation to discretionary judgments demonstrated that identification of some such error must have been intended. His Honour expressly stated that no distinction could be drawn between s 6(3) and s 5D: p 250. Similar principles had been adopted in relation to the power of the Court under s 6(3) in Skinner v The King (1913) 16 CLR 336 at 340 (Barton ACJ) and 342 (Isaacs J), (Gavan Duffy, Powers and Rich JJ concurring). They were applied by Spigelman CJ in R v Elliott; R v Blessington [2006] NSWCCA 305; 68 NSWLR 1 at [74], describing this Court as a “court of error”; they distinguish the jurisdiction from that of appeal by way of rehearing: see Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 82 ALJR 82, at [35].

8 A second matter of principle relied upon by counsel for the applicant was the proposition derived from the judgment of Adams J in DB v Regina [2007] NSWCCA 27; 167 A Crim R 393 that, as a matter of fundamental principle, “the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing … should be that which is imposed”. This principle, his Honour noted, had been identified as “the principle of parsimony” by Napier CJ in Webb v O’Sullivan [1952] SASR 65 at 66, terminology which had been adopted in Victoria in R v Storey [1998] 1 VR 359 at 366 (Winneke P, Brooking and Hayne JJA and Southwell AJA) (a case dealing with the burden of proof with respect to matters of mitigation) and in R v PP [2003] VSCA 100; 142 A Crim R 369 at [8] (Callaway JA, Winneke P and Buchanan JA agreeing).

9 How this principle was sought to be invoked in the present case was less clear. At one stage counsel appeared to suggest that where it was possible to say that a range of sentences was reasonably open to the trial judge, error, or at least manifest excess, would be demonstrated by the failure to adopt a sentence at the bottom of the range. If that were the submission, it was misconceived. The sentence which is in fact imposed by a particular trial judge will be that sentence which is thought to be appropriate in all the circumstances. The fact that minds might reasonably differ as to what that sentence might be, demonstrates that there will be a range within which a court of criminal appeal will not interfere on the grounds of manifest excess or inadequacy. If it were demonstrated that a trial judge imposed a sentence at the top end of that range, not because of a satisfaction that such a sentence was appropriate in the circumstances, but because of a view that the law prevented taking a particular matter into account which the trial judge believed to be relevant and therefore increased the sentence within a range which he or she thought was appeal-proof, an appeal court might yet intervene on the basis that the judge had taken into account an irrelevant consideration. Whether it takes the matter any further to say that a “principle of parsimony” has been breached, is unclear. In the present case, it was necessary for the applicant to demonstrate an arguable error or arguable manifest excess, in order to obtain leave to appeal. If leave were granted, it was necessary for the applicant to make good the complaint and, in addition, to demonstrate that some lesser sentence was warranted in law: see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [74]-[79] (Spigelman CJ, Mason P, Grove, Sully JJ and Newman AJA agreeing).

10 In The Queen v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 at [32], the Victorian Court of Appeal (Maxwell P, Buchanan and Vincent JJA) set out a number of ways in which impaired mental functioning, whether temporary or permanent, was relevant to the exercise of a sentencing power. It is convenient to restate the principles:

“1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”

11 In Courtney v The Queen [2007] NSWCCA 195; 172 A Crim R 371 at [14]-[16] I expressed the view that those principles were consistent with statements in this Court. They should in any event be applied, absent a specific statutory basis for departing from them, by this Court to the extent that they reflect the general law of Australia as understood by an intermediate court of appeal.

12 While mental impairment will often tend to diminish moral culpability, and hence tend to diminish the appropriate sentence, it may have other effects in some circumstances. As noted by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 71, “the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public”, the last being a matter referred to also by Sperling J in R v Hemsley [2004] NSWCCA 228 at [33]-[35] and by Howie J in Courtney at [82]-[86]. However, as the trial judge recognised at [41], the present applicant was unlikely to re-offend and had excellent prospects of rehabilitation. Protection of the public was not an issue which carried weight in the present case; his Honour stated at [42]:

“…I am satisfied that nothing will be gained so far as discouraging re-offending or assisting rehabilitation by keeping the Prisoner in custody for longer than the minimum term his offending requires.”

13 The applicant’s personal circumstances have been set out by Hidden J and need not be repeated. They were indeed expressly recognised by the sentencing judge. The question for this Court is whether those circumstances were properly reflected in the sentence imposed.

14 It is commonly said that the circumstances of manslaughter are so variable that it is difficult to obtain guidance from precedent: see, eg, R v Woodland [2001] NSWSC 416 (Wood CJ at CL) at [27]-[30] set out with approval by this Court in Regina v Hoerler [2004] NSWCCA 184 at [18] (Spigelman CJ). Nevertheless, there were a number of cases discussed in Woodland to which regard was properly had. Although, as noted by the Chief Justice in Hoerler, the six cases referred to in Woodland should not be seen as covering a relevant range of objective criminality and appear not to have included the circumstances of Hoerler itself, such cases do provide guidance in the present circumstances, as explained by Hidden J below.

15 The sentences in those cases do not demonstrate that the sentence imposed by Hulme J in the present case was manifestly excessive. To succeed, the applicant must demonstrate error in the approach adopted by his Honour in his careful consideration of the way in which the sentencing discretion should be exercised. In this, the applicant has succeeded.

16 The relevant evidence before the trial judge was by way of written reports from various experts. The applicant did not give evidence, nor did any of the experts. Subject to minor variations in emphasis, both psychiatrists, Drs Giuffrida and Allnutt, accepted the psychological assessment undertaken by Dr Susan Hayes, Associate Professor and Head, Centre for Behavioural Sciences, University of Sydney – Faculty of Medicine. That material indicated that the applicant had a degree of intellectual impairment, probably caused by hypoxia at birth, the effects of which were explained by Dr Giuffrida in the following terms: “the combination of his mental retardation plus his anxiety and depressive conditions and the stresses of looking after a new born baby conspired together to rob him of his capacity to control himself at that moment of time”: [2007] NSWSC 429 at [29]. After referring to that passage, his Honour concluded at [33]:

“I am satisfied that over a period the Prisoner had become increasingly frustrated at the deceased’s crying and what he perceived to be an inability on his part to stop that crying. I am satisfied that this frustration came to a head on the night [his child] died. I am also satisfied that to a significant degree the Prisoner’s actions were the result of the medical or psychiatric conditions of which the psychiatrists spoke and that these in turn were largely attributable to the accident at birth which the Prisoner suffered.”

17 His Honour placed significant weight on the fact that the applicant had struck the child on her face or head in frustration on two prior occasions. After considering the proper approach to dealing with persons suffering mental impairment and noting the limited weight to be given to personal deterrence and rehabilitation, his Honour continued at [49]:

“That said, one matter for which the Prisoner may be severely criticised is his failure to address his emotions or lack of control after the blows to [his child] which are the subject of the Form 1 offences. Embarrassment in doing so there may have been, but the circumstances – an adult carer and a baby – and the potential consequences were so great that any embarrassment, at least to an outside observer pales into insignificance.”

18 His Honour then noted the need to give “substantial weight” to retribution, to reflect the fact that the “killing of a baby or young child by a parent is terrible”: at [50]. His Honour continued at [51]:

“Among the factors which distinguish this case from a number of those to which I have been referred are the extent of the Prisoner’s brain and psychiatric condition and disabilities, his prior record and character and, operating in the other direction, the probable conditions of his incarceration, the criminality involved in the Form 1 offences and the fact that the events, the subject of those offences should, notwithstanding his disabilities, have provided fair warning.”

19 There are two complaints which may properly be made of this reasoning. The first is that there is a degree of inconsistency between the acknowledged intellectual impairment and the criticism of the applicant for not seeking help after twice venting his frustration with the child by hitting her across the face. If his failure to take such steps were due to embarrassment, as suggested at [49], that would be worthy of adverse comment. However, there is an assumption underlying that criticism, namely that the applicant had sufficient insight to realise the need for help. That assumption must be justified before finding the reason for a failure to obtain help. The inference that a person found to have the “coping skills” of a child aged 10 years and 8 months and to be functioning at the level of the lowest 1 in 1000 of (presumably adult) persons in the community, does not allow such an inference of insight to be drawn. The probabilities are against that conclusion. Whilst the psychiatric assessments supported the view that “he maintained capacity to judge right from wrong” (Dr Allnutt, 11/04/07, p 15) they did not support an inference that he had sufficient insight into his prior losses of control to warrant a finding of serious moral failure.

20 The second concern is that the passage last quoted above bases the need for substantial weight to be placed upon retribution on the objective circumstances of a parent and carer killing a baby. So far as it goes, that is undoubtedly a proper judgment. However, retribution without reference to moral culpability is more reflective of a desire for vengeance than proportionate punishment under the law. If, as the Victorian Court of Appeal held in Verdins, a mental impairment reduces the moral culpability of the offender, denunciation is less likely to form part of condign punishment.

21 These two elements are, of course, related and do not form separate criticisms. The second demonstrates that the unwarranted factual inference involved in the first has (on the unsupported assumption as to the relevant degree of moral culpability) carried through into the sentence. Once the factual inference is removed, the sentence must properly be reduced. I agree with Hidden J that an appropriate sentence is imprisonment for a period of 6 years, with a non-parole period of 3.5 years and a balance of 2.5 years.

22 HIDDEN J: The applicant was charged with the murder of his seven week old daughter. He pleaded guilty to the manslaughter of the child, on the basis that he caused her death by an unlawful and dangerous act, and the Crown accepted that plea in discharge of the indictment. Hulme J sentenced him to imprisonment for 7½ years, dating from 15 July 2005, comprising a non-parole period of 4½ years and a balance of term of three years. In doing so, his Honour took into account on a Form 1 two offences of assault occasioning actual bodily harm, perpetrated against the same child. The applicant seeks leave to appeal against that sentence.

Facts

23 The applicant had been in a relationship with his partner, the mother of the child, for several years. She gave birth to the child on 21 May 2005. The offence occurred at the premises where they were living in the early hours of 13 July 2005. The baby awoke and began to cry. The applicant and his partner had an arrangement to take it in turns to attend to the child when this happened, and on this occasion he got up, took her to the lounge room and put her on the lounge. He bottle fed her and tried to bring up her wind, but she continued to cry. He tried to have her take a dummy but she still did not settle.

24 He then sat on the child. She stopped crying and, apparently, stopped breathing. The applicant rushed into the bedroom he shared with his partner and woke her. He dialled 000 for assistance and tried to revive the child with CPR. Ambulance officers arrived, to find him still performing CPR, but they found that the baby was not breathing, her pupils were fixed and she had no pulse. Efforts to revive her by those officers, and later by staff at a hospital to which she was taken, were unsuccessful.

25 The charges on the Form 1 arose from two earlier and separate occasions on which the applicant had struck the child to the area of her head with his open hand. There was a dispute, turning upon medical evidence, about whether he had inflicted other violence on her, but his Honour resolved that dispute in his favour. Post-mortem examination revealed recent fractures to some of the baby’s ribs, which his Honour accepted had been caused by the applicant sitting on the child on the occasion in question.

26 In the result, the applicant was sentenced on the basis that the only assaults he had committed upon the child, and the only injuries he had inflicted upon her, were those encompassed by the manslaughter offence and the two offences on the Form 1. Nevertheless, his Honour found that those earlier assaults must have made him aware “that his conduct or some inability to control himself created a risk for a young and helpless baby”. His Honour added that there was “no suggestion he took any steps to ameliorate that risk”.

27 There were before his Honour a number of psychiatric and psychological reports about the applicant. They dealt with his mental capacity generally, and his emotional state at the relevant time, matters to which it will be necessary to refer shortly. To those experts he gave an account of having difficulty coping with the care of the new born baby, and of becoming increasingly frustrated about her crying and his inability to stop it. He told one of the psychiatrists, Dr Allnutt, that he came to feel “hopeless” and worthless as a father. It was this frustration, he said, which led him to hit the child on the occasions of the offences on the Form 1.

28 To Dr Allnutt and another psychiatrist, Dr Giuffrida, he recounted an occasion not long before the fatal incident in which the baby was on the lounge chair, crying. He got up to adjust the television, returned to the lounge and, apparently accidentally, sat on her. He immediately got up and noticed that she had stopped crying. He told Dr Giuffrida that he heard “the breath go out” of her, and to Dr Allnutt he said that it seemed that she had been “shocked”. He told Dr Giuffrida that this may have been in his mind when he sat on her on the morning she died, and that is implicit in what he told Dr Allnutt.

29 It was in Dr Allnutt’s report that his Honour found the best explanation of why the applicant acted as he did on the occasion of the child’s death. The applicant told Dr Allnutt of his getting up to attend to the child and of his efforts to settle her. The doctor’s report continued:

He felt frustrated, he said “I didn’t know what to do, I thought why does she do this every time I feed her, does she hate me, am I a bad father”. He put her down on the couch to his right, leaning back and half sitting. He got up and sat on her stomach. I asked him whether he put all his weight on her and he said he did not put all his weight on her. I asked him, “what did you think you were doing when you did that”, he said, “I don’t know what I was thinking really”. I asked him, “what made you sit on her”, he said “I just thought I wanted her to stop crying, I didn’t know how, that’s all I wanted to do”. I asked him again why he had sat on her, he said “I didn’t want Janice to think I was a bad father”. I asked him why did he think that sitting on the child was going to stop her crying, he answered, “I didn’t know any other way. I didn’t want to wake Janice up, because I didn’t want her to think that I was a bad father and I didn’t want her to hate me.” …
“I didn’t think of the consequences…”.
At the time he sat on the child he said his intention was to stop her from crying. I asked him how he was feeling and whether or not he felt angry, he described his feeling as frustration. He said he sat on her because he thought it would stop her crying. He said he did not put all his body weight on her. I asked him how much body weight he put on and he replied. “It was half”. I asked why not put all the body weight on her and he said, “I thought that would harm her”. He said he did not want to harm her when she sat down on her, he said “I didn’t want to hurt her, I didn’t want to kill her, I just wanted her to stop crying”. I asked him, “what were you thinking when sitting on her”, he said, “ I thought if I do this, then I will stop her crying”, “at the time I wasn’t thinking straight, I didn’t think of the consequences, whether it was right or whether it was wrong”. I asked again, “so what was your intention” he stated, “to get her to stop crying”, “I did not want to kill her, I did not want to harm her”. I asked him whether or not his action was an expression of his anger and he agreed, he said, “At the time I felt frustrated, I didn’t know what to do”. He decided to “put her down to sit on her, to stop her from crying”.

30 His Honour expressed himself satisfied that over a period the applicant “had become increasingly frustrated at the deceased’s crying and what he perceived to be an inability on his part to stop her crying”. He was also satisfied that that frustration “came to a head” on the occasion that the child died.

Subjective case

31 The applicant was twenty-three years old at the time of the offence, and is now twenty-six. He had no prior convictions and his Honour was satisfied that he was “of thoroughly good character”. His upbringing had been marred by his father’s physical abuse of his mother. Notwithstanding this, his Honour accepted evidence that he was not given to violence, even when provoked.

32 The applicant was allowed a modest discount for his plea of guilty. His Honour accepted that he was remorseful and that he had looked forward to his daughter’s birth and, notwithstanding the prior acts of violence, had made “commendable efforts” to care for her. His Honour considered him to have excellent prospects of rehabilitation, subject to a reservation about how he might behave if he were placed in a similar situation. He considered that much would depend upon whether the factors which led to the offence were adequately addressed. Those factors were elucidated in the psychiatric and psychological reports.

33 It emerges from those reports that the applicant suffered hypoxia and consequent brain damage at birth, leading to intellectual disability and substantial short term memory deficits. At school he was placed in remedial classes, where he was constantly teased by other children because of his condition. He frequently truanted because of this behaviour. He became anxious and socially withdrawn. He left school in year 11, and was able to hold a number of jobs with the help of a specialist employment agency dealing with people with intellectual disabilities.

34 Psychological testing revealed that his intellectual functioning falls in the extremely low range, within the first percentile. Dr Giuffrida observed that his language impairment, which largely determines his level of everyday functioning, was such that 99.9 per cent of people would be functioning better than him on average. One psychological test disclosed that his coping skills were at the level of a person aged ten years and eight months.

35 The applicant gave both psychiatrists a family history of recurrent or chronic depression and bipolar disorder. His relationship with his partner had been a supportive one, but it seems that it was not free of difficulty. She would become frustrated by his impaired coping skills, particularly during her pregnancy, sometimes describing him as “slow” and “hopeless”. Dr Allnutt concluded that at the time of the offence he was suffering from a depressive disorder of mild severity, in addition to his intellectual impairment and long standing social anxiety.

36 In his remarks his Honour summarised relevant findings by Dr Allnutt as follows:

The doctor opined that the prisoner was suffering from “feelings of inadequacy, increased propensity to irritability, poor self worth and feeling frustrated about himself and the child due to his depression, and less than normal capacity to cope with the circumstances due to intellectual impairment”, that the prisoner “became preoccupied with his and others’ perceptions of his inability to settle the deceased”, “felt frustration with the deceased because each time he failed to achieve a good outcome for the deceased, the issue of his ability as father in the eyes of himself was raised” and was less capable of dealing with these feelings because of his intellectual handicaps.

37 His Honour went on to record Dr Allnutt’s finding that the applicant “was compromised in his capacity to cope with his circumstances”, and that he was “probably compromised in his capacity to control his actions”, although the doctor was uncertain of the extent of that compromise. His Honour also recorded Dr Giuffrida’s view of the applicant that “the combination of his mental retardation plus his anxiety and depressive conditions and the stresses of looking after a new born baby conspired together to rob him of his capacity to control himself at that moment of time…”.

38 His Honour concluded that “to a significant degree” the offence was “the result of the medical or psychiatric conditions of which the psychiatrists spoke and that these in turn were largely attributable” to the condition which the applicant had suffered at birth. Later in his remarks, his Honour referred to the principle that, where an offence is influenced to a significant extent by mental deficiency, general deterrence should be given less weight. He saw the case as falling within that principle, but added that that was not to suggest that no weight should be given to that factor. His Honour also regarded personal deterrence as having “limited weight” in the case, but he continued:

That said, one matter for which the Prisoner may be severely criticised is his failure to address his emotions or lack of control after the blows to [the child] which are the subject of the Form 1 offences. Embarrassment in doing so there may have been, but the circumstances – an adult carer and a baby – and the potential consequences were so great that any embarrassment, at least to an outside observer pales into insignificance.

39 It was in the light of the “mental and psychiatric factors” generally that his Honour found special circumstances, reducing the non-parole period below the statutory proportion to the head sentence.

The Application

40 The only ground of the application is that the sentence is manifestly excessive. Counsel for the applicant, Ms Francis, acknowledged that his Honour’s findings of fact were favourable to the applicant and, with one exception, she did not challenge them. The exception was the finding that the applicant’s earlier assaults upon the baby should have put him on notice that he could pose a threat to her and that he should have taken steps to “ameliorate that risk”. Ms Francis submitted that that finding was not reasonably open, given the applicant’s significant intellectual deficits. Otherwise, her argument was that the seven-and-a-half year sentence did not refect his Honour’s favourable findings about the circumstances of the offence, including the diminution of the offender’s criminal responsibility because of his mental capacity.

41 Ms Francis relied upon the cases of child manslaughter reviewed by Spigelman CJ in R v Hoerler (2004) 147 A Crim R 520, [2004] NSWCCA 184. The Chief Justice noted the wide variety of circumstances embraced by the crime of manslaughter and, speaking of child manslaughter, said at [43]-[44]:

…the acts constituting the offence and the circumstances of the offender at the time of the offence, may vary over a very wide range of objective gravity. The actual physical assault leading to death can range from comparatively minor force to a sustained beating over a prolonged period of time, incorporating elements of gratuitous cruelty. The personal culpability of the offender may vary from a carer who acts out of despair or in circumstances bordering on accident, to the vicious acts of a sadist.
In this regard child killing does not differ from other cases of manslaughter. When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly.

42 The wide range of objective gravity to which his Honour referred is reflected in the series of cases he cited. It is unnecessary to set them out again. It is sufficient to say that at [17]-[18] his Honour referred to the remarks on sentence of Wood CJ at CL in R v Woodland [2001] NSWSC 416, in which the Chief Judge himself derived assistance from six cases of child manslaughter, two of them decisions of the Court of Criminal Appeal, decided between 1991 and 2000. In Hoerler at [61], the Chief Justice set out a further seven cases, two of them again decisions of the Court of Criminal Appeal, decided between 1994 and 2003. The majority of these cases, as well as Woodland and Hoerler themselves, involved a plea of guilty to manslaughter accepted in satisfaction of an indictment for murder, as in the present case.

43 Taken together, sentences in those two series of cases ranged from 5 years to 15 years, with non-parole periods ranging from 3 years to 10 years. The majority of them involved sentences between 5 and 9 years, and non-parole periods between 3 and 6 years. In Woodland the sentence was 7 years and 9 months with a non-parole period of 4 years and 9 months. In Hoerler, a particularly serious case of its kind, the Court of Criminal Appeal allowed a Crown appeal and imposed a sentence of imprisonment for 14 years and 4 months with a non-parole period of 10 years and 9 months.

44 The Chief Justice in Hoerler at [45]-[46] also referred to research by the Judicial Commission into sentences for homicide between 1994 and 2000, from which it emerged that for child manslaughter sentences ranged from 2 years to 16 years, with a median of 7 years, and non-parole periods from 8 months to 11 years, with a median of 4.4 years. This was not significantly different from the pattern of sentence for manslaughter generally. His Honour emphasised that neither that research nor the cases to which he referred were adequate to identify a range of sentence for child manslaughter generally, although the cases could provide some guidance or assistance in the exercise of the sentencing discretion in a particular case: see the judgment at [41], [47], [49]-[50], [62].

45 To those cases there should be added the remarks on sentence of Howie J in R v Rowe [2007] NSWSC 300. That offender had been found guilty after a trial of the manslaughter of her infant son. She was a drug addict, who had had difficulty coping with the responsibility of the child in the period leading up to the offence. For the purpose of sentence, his Honour found that she had given the child methadone, “in an attempt to settle him when driven to desperation by his insistent crying and her inability to obtain the sleep she required”: [21]. She was sentenced to imprisonment for 5½ years, comprising a non-parole period of 3 years and a balance of term of 2½ years.

46 In the present case Hulme J was confronted with a very difficult sentencing exercise and this application has not been easy to resolve. As his Honour observed, the killing of a baby by a parent is “terrible” and in any case of this kind “substantial weight” should be given to retribution. The unfortunate child was only seven weeks old. Moreover, his Honour was required to take into account the two previous acts of violence on the Form 1. That said, I agree with Basten JA, whose reasons I had the advantage of reading since drafting my own, that the need for retribution in this case must be assessed in the light of the applicant’s diminished moral culpability because of his mental condition.

47 I am persuaded, for the reasons given by Basten JA, that it was not open to his Honour to conclude that those earlier assaults should have forewarned the applicant of the risk of his causing further harm to the child. In that same context, in oral argument in this Court the Crown prosecutor sought to place significance on the applicant’s account to Dr Giuffrida of the earlier occasion on which he had sat on the child when, he said, he heard her “breath go out”. It is difficult to know what to make of that evidence, and it would be an inadequate foundation for a finding that the applicant foresaw some harm when he sat on her on the occasion in question. Certainly, his Honour made no such finding.

48 There was a good deal in the evidence which was in the applicant’s favour. This manslaughter was clearly low in the range of objective gravity of offences of its kind. It was born of frustration, but it was an impulsive act by a man who was otherwise devoted to the child and was doing his best to care for her as a father should. The fact that he was not coping with that task is fairly attributable to his congenital intellectual deficits and the lack of self-esteem which they engendered. It is against that background, and in the light of the applicant’s depression and anxiety at the relevant time, that the offence must be understood. The same factors serve to explain the offences on the Form 1 and, although they were not to be ignored, there is force in Ms Francis’ submission that, standing alone, they would not have resulted in a custodial sentence.

49 The applicant is a young man of previous good character. He was remorseful and presented with good prospects of rehabilitation. This was a case in which the principles governing the sentencing of people suffering from mental illness or disorder, summarised by Gleeson CJ in R v Engert (1995) 84 A Crim R 67, loomed large. Those principles bore upon the extent to which the sentence needed to reflect considerations both of retribution and deterrence.

50 In all the circumstances of this unusual case, I am satisfied that the sentence passed by Hulme J calls for this Court’s intervention. An affidavit of the applicant was read for the purpose of re-sentence. It attests to his continuing distress about his crime and his remorse for it. It also discloses that he has been undergoing counselling in custody, directed particularly to dealing with stress, and has been undertaking courses in literacy and numeracy.

51 Leave to appeal should be granted and the appeal allowed. The sentence passed by Hulme J should be quashed and, in lieu, the applicant should be sentenced to imprisonment for 6 years, comprising a non-parole period of 3½ years, commencing on 15 July 2005 and expiring on 14 January 2009, and a balance of term of 2½ years, commencing on 15 January 2009 and expiring on 14 July 2011.

52 BARR J: I gratefully adopt the statement of facts as set forth in the judgment of Hidden J.

53 The difficulty encountered in confidently identifying the limits of the judicial discretion in sentencing for manslaughter has been demonstrated in this Court. See, for example, R v Blacklidge, 12 December 1995 unreported and other cases dealt with in R v Trevenna [2004] NSWCCA 43.

54 The facts of the present case were singular and presented a difficult problem for the sentencing judge. I am not persuaded that the sentence appealed from fell outside the proper range of his Honour’s discretion. I would grant leave to appeal but would dismiss the appeal.

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