R v As (Sentence)

[2023] NSWSC 1575

Supreme Court

New South Wales

Medium Neutral Citation:

R v AS (Sentence) [2023] NSWSC 1575

Hearing dates:

1 December 2023

Date of orders:

13 December 2023

Decision date:

13 December 2023

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Having been convicted of the murder of Baby A, the offender is sentenced to a term of 18 years’ imprisonment to date from 20 August 2020 and expiring on 19 August 2038. There will be a NPP of 12 years and 6 months imprisonment, expiring on 19 February 2033.

Catchwords:

CRIMINAL LAW – sentence – murder – killing of newborn baby by his father – gravity of offence – significance of obligation on parents to care for children – where diminished moral culpability due to offender’s PTSD – finding of special circumstances – where lack of remorse – where offender’s prospects of rehabilitation are reasonably positive – where need for general, but not specific, deterrence

Legislation Cited:

Crimes Act 1900 (NSW), s 18(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Category:

Sentence

Parties:

Rex (Crown)
AS (Offender)

Representation:

Counsel:
S Traynor (Crown)
N Steel (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Velasquez Legal (Offender)

File Number(s):

2020/243134

Publication restriction:

Nil

JUDGMENT

1. AS arrived in Australia in 2009, having left his native Afghanistan and travelled here by a circuitous route. About two years later he met and married WN, bringing Ms N to Australia in 2013 to join him. In 2017 the couple had their first child, born after Ms N underwent an IVF process in Afghanistan. Their second child, Baby A, was conceived in the same way. He was born in Auburn on 20 April 2020. At the time of Baby A’s birth, it might have been supposed that the offender and Ms N had achieved much that a new country could offer them: a home, two healthy children, and a safe place in which to raise their children.

2. For Baby A, however, the safety of his home environment proved tragically illusory. On 27 June 2020 the baby was fatally injured when the offender shook him vigorously, causing him a severe brain injury that was the direct cause of his death one month later, on 20 July 2020. The baby was 9 weeks old when he was fatally injured, and a little over 3 months of age when he died.

3. The offender stood trial before this Court from 2 August 2023 to 11 September 2023, charged with Baby A’s murder. The jury returned a verdict of guilty to murder on the final day of the trial. It now falls to the Court to sentence AS for the murder of his son, consistent with the verdict of the jury.

4. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It carries a maximum penalty of life imprisonment and, in the circumstances of this case where the victim was a child under the age of 18 years, a standard non-parole period (“SNPP”) of 25 years has been fixed by the legislature.

The Facts of the Offence as Found by the Court

5. Drawing on the evidence given at trial, and noting that conclusions adverse to the offender must be established to the criminal standard, whilst matters favourable to him need only reach the civil standard of proof, the facts of the offender’s crime are these.

6. Baby A was born by caesarean section on 20 April 2020. He was a healthy baby who was well when seen by a nurse and later a general practitioner for routine consultations on 11 May, 22 May, and 5 June 2020. The baby was primarily cared for by Ms N, in the family home with his older brother. The offender was employed, working to support his family full-time as a carpenter and part-time as a kitchen hand in a restaurant. He had been solely responsible for the baby’s care on only a few short occasions, when Ms N had left the two children with him. On another occasion, 24 June 2020, Ms N had left the sleeping baby with a friend, who told the jury in evidence that the baby was well when Ms N returned home from a brief absence.

7. On 26 June 2020 the offender left for work just before 5am. He returned home later that morning, leaving again for his second part-time job soon after 5:30pm. After spending the evening working at the Khyber Restaurant the offender arrived home at around midnight. Ms N was asleep with her eldest son in her bed; the baby was asleep in a cot placed in the same room. The offender lay down on the floor to sleep.

8. Ms N awoke to feed Baby A at about 2am and again at around 5am, on 27 June 2020. She and the baby then returned to sleep. Ms N woke again at 8:15am, and she fed Baby A from a bottle. She had to go out to a pathology centre in Auburn for a blood test, and left the two children in her husband’s care. The baby was awake and smiling as he lay in his cot; AA was sitting and playing on a mobile phone that he had been given for his use. Ms N left the family apartment in Auburn at about 9am and began to walk to the town centre. Part of the route Ms N walked that morning was covered by closed circuit surveillance cameras, and Ms N was filmed as she walked along Auburn Road. As she passed the gates of the Al-Faisal school, she was recorded apparently checking her handbag and pockets and then turning and beginning to retrace her steps. Ms N told the jury that she had realised that she had forgotten her mobile phone. As the procedure she was to undergo took some hours, she had decided to return to her home and get the phone, so that she would not be out of touch from her children. By the time she arrived home she had been gone for approximately 15 or 20 minutes.

9. On walking up the steps to the front door of her apartment Ms N knocked, knowing that her eldest son loved to answer the door to callers and intending to give him that small pleasure. When the door was opened it was not, however, AA who stood there. Instead the offender stood in the doorway with Baby A in his arms. Ms N could see immediately that there was something very wrong with the baby; his eyes were open but seemed sightless and there was a small bloody discharge from his nose. His skin was pale.

10. In the minutes during which Ms N had been away from the house the offender had shaken Baby A so vigorously that significant rotational force was applied to his head, force that Baby A could not resist because, at his very young age, his neck muscles had yet to sufficiently develop to allow him to control the movement of his head. The baby’s body was also affected by the vigorous movement, and his limbs flopped about in an uncontrolled way. When the offender shook his son in this way, having been previously warned by Ms N about the dangers of shaking a baby, he realised that his act would probably cause the death of Baby A, but he persisted in his act nevertheless. Consistent with the verdict returned by the jury, the offender was recklessly indifferent to the life of his son.

11. On seeing her son apparently lifeless in the offender’s arms Ms N took a mobile phone, that which AA had previously been playing with, and dialled the Emergency Operator. She was hampered by being unable to speak English, but she endeavoured to secure help for Baby A. An interpreter had to be joined to the call to translate for Ms N. As she tried to explain the need for an ambulance, Ms N was also going to neighbouring apartments for aid. She knocked on the door of the apartment shared by Mr Mansour and his wife Ms Khadija, both of whom came out onto the landing.

12. Mr Mansour went into the offender’s apartment and saw him in the bedroom holding the baby. Baby A’s head was hanging to one side and there was bleeding from his nose. When Mr Mansour asked the offender what had happened he responded, “I killed the baby”. To Ms Khadija, who also came to the apartment, the offender confessed, using English, “Sister, I killed the baby”.

13. Mr Mansour offered to drive Ms N to nearby Auburn Hospital. Taking the baby, Ms N went downstairs with another neighbour, Ms Fatima, and both got into the back of Mr Mansour’s car. Mr Mansour drove to Auburn Hospital where he stopped at the Emergency entrance. Getting out of the car he rushed inside to alert medical staff; Ms N followed with the baby. Hospital staff went to Ms N’s assistance, taking Baby A from her arms. He was not breathing and had to be resuscitated. His condition was dire.

14. The offender was brought to the hospital soon after by police officers who had responded to the call to assist. He joined Ms N and Ms Fatima in a family waiting room. A neighbour who had accompanied him, Mr Hosseini, was also present. Ms N and the offender were both extremely distressed and at one point the offender struck the wall of the room, putting a hole into the plaster. Because of that police were asked to enter the room to ensure the safety of all present. Body worn cameras were activated by attending officers.

15. Ms N, in a state of extreme distress, asked the offender repeatedly in her native Dari “What have you done”. The offender was recorded by the police cameras soon after saying, in Dari, “I killed my kid, his hands and legs”. Later, in English, he said again, “I killed my kid”. These admissions were genuine in the Court’s conclusion, and constituted admissions to having acted in such a way as to fatally injure Baby A.

16. At the same time as the offender waited in the Family Room, medical and nursing staff were treating Baby A, and trying to discover what had happened to him. His condition was too serious for Auburn Hospital to be able to provide him with the necessary care and he was transferred to the Westmead Children’s Hospital. Over the following month every possible measure was taken by highly skilled and experienced practitioners to save the life of Baby A, but the damage he had sustained to his brain was too severe. Ultimately, the life support that had been the only thing keeping the baby alive since he was resuscitated on presentation at Auburn was withdrawn, and Baby A died that same day, on 20 July 2020.

17. Investigations undertaken when Baby A was in hospital and an autopsy after his death established that he had sustained catastrophic head injuries. They were severe haemorrhages across and extending to the peripheries of both eyes; separation of his retinas; tearing of and haemorrhaging to the optic sheath of each eye; bleeding onto the brain below the dura from torn veins that bridged the brain and the dural membrane; and significant and global hypoxic ischemic injury to the brain. I am satisfied to the necessary standard that Baby A had also suffered fractures to both femurs. Whilst the fractures to the ends of the thigh bones were not fatal, the brain damage was so severe as to be unsurvivable.

18. The expert evidence given before the jury established to the criminal standard that the violent shaking of Baby A had caused acceleration / deceleration motion injuries as the baby’s brain moved about in the skull cavity when he was shaken, and also the fractures to the ends of both femurs as the baby’s legs flopped about during the same movement. Subdural bleeding from the torn veins between the brain and dura caused the accumulation of blood in that space. Cerebral spinal fluid had leaked into the subdural cavity from tears in the dura. The baby would have lost consciousness and his breathing diminished and then ceased, leading to the hypoxic ischemia. The overwhelming weight of the evidence was that these injuries were inflicted during a single shaking incident immediately prior to the baby’s admission to Auburn Hospital. Whilst there was some evidence that suggested the reasonable possibility of an additional impact to the child’s head at the same time, that possible partial mechanism of injury was not established to the high criminal standard, and I have set it aside.

19. I have also set aside the evidence that points to some earlier incident leading to a smaller amount of bleeding around Baby A’s brain, pre-dating the fatal injuries. Although it is possible that some subdural bleeding was occasioned in an earlier incident when the offender shook his son, I cannot reach that conclusion beyond reasonable doubt. I am satisfied to that standard however, that the offender did shake Baby A on at least one occasion before 27 June 2020, causing the baby to scream. This act was witnessed by Ms N who warned the offender that he could kill the baby by shaking him in such a way. Even if it was not already obvious to the offender, he was very much on notice of the dangers of shaking a newborn baby because of his wife’s admonition when he did exactly that on 27 June 2020, killing his son.

20. Other than his more unguarded admissions to neighbours immediately after injuring Baby A, the offender has never acknowledged what he had done, and he lied to doctors and his wife who repeatedly asked him what had happened to the baby.

21. One consequence of the clearly suspicious nature of the injuries inflicted on Baby A in circumstances where no credible explanation was forthcoming to explain how he received his injuries, was that the couple’s eldest child was removed from their care. Ms N told the jury what a devastating blow that was to her; it was also perceived as a terrible injustice to her and her surviving son. She was not to regain custody and care of her son for a period of over 18 months.

22. The offender was arrested for his son’s murder on 20 August 2020. He refused to be interviewed by police.

Other Evidence in the Crown Case on Sentence

23. The offender has no criminal record and neither has he incurred any record of institutional offending since entering custody.

24. A victim impact statement was written by Ms N and read in English to the Court on 1 December 2023. Additionally, a short report from Ms N’s treating psychologist was before the Court. Both of those documents tell of the profound damage done to Ms N, and probably also to her remaining son, because of Baby A’s murder, a subject to which I shall return.

The Subjective Case

25. The offender tendered in his case a report from Ms Kris North, forensic psychologist, dated 27 November 2023, two character references, an affidavit of the offender sworn on 1 December 2023 (which is limited to the conditions of his custody), and an affidavit from his solicitor, Ms Kells-Spartalis, sworn on 30 November 2023. The offender did not give evidence before the Court, at trial or on sentence. His affidavit evidence concerning his circumstances in prison was not disputed.

26. Ms North assessed the offender with the aid of a Dari interpreter on 20 October and 2 November 2023 at Parklea Correctional Centre over a period of three hours.

27. The offender gave Ms North an account of his childhood in Afghanistan. He said he was born in Kabul as the third youngest of seven children. His father died from cancer while he was a child, and he was raised by his mother until her death when he was aged 15. He described the traumatic experience of having witnessed the bomb explosion which killed his mother, uncle, aunt, and younger brother and sister during the Soviet-Afghan War.

28. Following his mother’s death, the offender left Afghanistan to avoid the conflict. His older brothers arranged for him to be transported by people smugglers to Iran, where he stayed for over a year prior to being captured and returned to Afghanistan. The offender said that he was beaten by Iranian soldiers at the border, and detained and tortured by authorities once he returned to Afghanistan. He remained in Afghanistan for a few weeks before crossing the border into Iran for a second time.

29. The offender lived in Iran for a few years, where he worked as a carpenter. In 2001, his employer arranged for him to leave Iran and travel to Malaysia on false documents. He travelled by boat to Indonesia, but the boat was intercepted during the next stage of his voyage to Australia, and returned to Indonesia. He was detained there for the 7 years it took to process a humanitarian visa, during which period he told Ms North he had been sexually and physically abused. The offender arrived in Australia on 10 December 2009.

30. In Australia, the offender initially lived in accommodation provided by the government, and then with his older brother and his family. He married his wife in Iran in 2013 and, after she joined him in Sydney, he secured independent accommodation for them both. Up until the time of his arrest in 2020 the offender maintained stable employment as a cabinet maker. He reported that he and his wife had struggled to start a family, and Ms N conceived both their children through IVF treatment in Afghanistan and Iran respectively. He described having worked two jobs to support his family, and thus having had limited involvement in caring for his sons on a daily basis. Despite financial struggles, the offender said he had been happy to be a father. He reported no major issues within his marriage prior to Baby A’s death.

31. Referring to the trauma associated with the deaths in war of family members and the difficult process the offender underwent to obtain a visa to Australia, Ms North considered that the offender satisfied criteria for a diagnosis of Post Traumatic Stress Disorder (“PTSD”). She thought that these symptoms probably worsened after Baby A’s death. The offender also described symptoms consistent with a depressive illness, including sleeplessness, reduced appetite, and feelings of sadness, and Ms North felt that he met criteria for a Major Depressive Disorder. In assessing the offender, Ms North employed the Trauma Symptom Inventory 2^nd Edition to determine the presence of posttraumatic stress symptomatology. She observed that those symptoms had been exacerbated by the trauma and grief relating to his son’s death but noted that the offender had never been previously assessed, so the severity of any symptoms that might have manifested previously was unclear.

32. With respect to the reported symptoms of depression Ms North opined that,

“[…] his symptoms had initially developed in relation to grief for his son, and had been exacerbated and maintained over time by his legal proceedings and extensive period of incarceration. When questioned about his grief, Mr. [AS] stated he had not felt like he was inside his own body since his son’s death, and stated he wished it had been he who had died and not Baby A. It was my opinion that Mr. [AS]’s legal matters and the inherent stressors related to being in custody had also prevented him from addressing his unresolved grief issues and stress relating to the uncertainty of his future had escalated his underlying anxiety.”

33. Ms North noted that the offender maintained his innocence and she could make no assessment of any remorse.

34. On examination, there was no indication of sensory, perceptual or thought disturbances in the offender. He described his mental health as having gradually declined while in custody and he had thoughts about dying. Ms North expressed concern that the offender’s social isolation in custody due to language barriers had resulted in cognitive rumination, exacerbating his depressive symptoms. His poor English skills would likely continue to have an adverse impact on him, including with respect to requests for treatment. Ms North recommended that the offender have treatment for his symptoms of depression and history of trauma, and that his risk for engaging in self-harm be closely monitored.

35. The offender’s friend Mr Hassib told the court in his letter that he had known the offender since 2010 when he started attending the community mosque. He said that although the offender did not attend the mosque often, he had always been a helpful member of the community, volunteering to assist with programmes and during events, and with carpentry in the renovations of the community centre.

36. In his letter, Mr Ashrafi, who operates the restaurant in which the offender worked part-time, described the offender as his friend. He stated that the offender would go “out of his way” to help in the restaurant, and on one occasion, assisted him and his brother to move a lot of imported rice stock into storage. Mr Ashrafi said that the offender was “always ready to give someone a hand”.

33. The offender’s affidavit was confined to matters connected with his conditions of custody. He said that he had been threatened by other inmates, and had found prison very difficult during the period of the pandemic, during which the offender reported being locked in his cell for “weeks at a time”. He felt humiliated by his inability to communicate proficiently in English.

34. The offender has been working in custody, in carpentry and in laundry work.

35. Mr AS says that his health has suffered since entering custody. He has been diagnosed with Klinefelter syndrome, which is managed by quarterly injections of Reardon. The offender said that he has experienced difficulty in obtaining this medication while in custody. On two occasions, he was unable to receive his medication for an extended period prior to the intervention of his lawyer. The affidavit of Ms Kells-Spartalis, annexed to which is correspondence between the offender’s solicitors and representatives of the Correctional Centre at Parklea, confirms these incidents.

Other Relevant Considerations

The Gravity of the Crime

40. Every parent bears a responsibility for his or her child which is probably the greatest responsibility of one’s life. Parents have a moral and legal responsibility to care for their children, to nurture them, and to protect them from harm. The offender failed in that responsibility in the most fundamental way imaginable.

41. The Crown’s case went to the jury relying upon the first mental state referred to in s 18, that of being recklessly indifferent to human life. The jury concluded that the offender deliberately shook his baby son, with sufficient force to cause the extensive head and other injuries Baby A sustained, and did so realising that his conduct would probably cause the baby’s death, continuing nevertheless. That realisation was borne of two aspects of the offender’s experience.

42. At the time of the incident leading to Baby A’s death the offender was aged 46 years. He must have had considerable exposure to very young children during his almost five decades. He was one of seven children born to his parents, and would have some familiarity with, at least, the care of his two younger siblings. Growing up and as an adult, it is very likely that he had direct experience of infants, from his ordinary circumstances, and from having spent extended periods in facilities for immigrants, and on boats operated by people smugglers. That direct experience of newborns is certain with respect to the care of the offender’s eldest son, with which he would have been intimately involved, even in circumstances where Ms N was the primary caregiver. Any adult of average intelligence and life experience can be safely inferred to have some understanding of the dangers of vigorously shaking a newborn. I am satisfied that the offender had that general knowledge, and the direct knowledge that comes with being a parent and caring for an infant.

43. He also had a very specific warning from his wife, a warning given following an earlier incident in which the offender shook Baby A. Although the offender disputed this at trial, it was very clear on the evidence of the recorded conversations between the offender and Ms N and Ms N and her brother that there had been such an incident prior to 27 June 2020 that was witnessed by Ms N and which prompted her to tell her husband that shaking Baby A could kill him.

44. Ms N’s comments and statements during these conversations were plainly genuine and completely unfeigned. The offender had been previously warned not to shake the baby, and persisted nevertheless to do so, with the realisation that his act could kill his son.

45. That realisation was very likely to have been a fleeting one and the act it gave rise to was spontaneous and likely of very short duration. The offender had been working in both a full-time and a part-time job to provide for his family and there was evidence before the jury that the family was struggling financially, with difficulties in meeting utility charges. Working two jobs, with disrupted sleep due to a rigorous regime of early morning prayers and a wakeful infant, almost certainly caused the offender to be very tired. Irritability is a common companion to tiredness, particularly where there is an added layer of financial stress. There was some evidence given at trial that AA may have been fretful on this morning, requiring pacification with a sweet.

46. Although the offender has given no evidence of it, it is reasonable to conclude, at least on balance, that in the unfamiliar situation of having sole responsibility for a toddler and a newborn baby, the offender, who was tired, became irritated and overwhelmed by the needs of the children, and lost his temper, briefly shaking Baby A vigorously; who was probably crying at the time.

47. Having done so, it must have been apparent to the offender either immediately or very soon afterwards that his actions had injured Baby A. Despite that, he did nothing to summon help for Baby A, with an ambulance called for only after Ms N’s return.

48. At the heart of this offence is the tragic loss of the life a baby, and the unbearable burden of pain and grief that crime has caused. Ms N referred in her victim impact statement to the future she imagined for her youngest son, whom she envisioned growing to be strong and independent. That life, with all of the possibility it held, was snuffed out, by a few moments of reckless indifference from his father, who should have protected him.

49. Ms N has suffered profoundly because of the murder of her baby. To lose a newborn child to violence must be the cruellest experience that any mother could have and Ms N’s heartbreaking victim impact statement provided an eloquent if searing account of her overwhelming grief. Even without a written statement of it there could be no doubt of the profound and enduring grief caused to Ms N by the murder of her child, and the consequences to her and to AA of the absence of any explanation at the time of the circumstances of Baby A’s death. Ms N’s grief was an almost palpable presence at the offender’s trial.

50. The harm done by all murders can be concluded to be significant, recognised by the maximum penalty specified of life imprisonment. The harm done by the murder of a child is frequently even greater, a feature no doubt of relevance to the SNPP specified for such a crime, 25 years. In the offender’s case the harm went even beyond that, in that it deprived Ms N of her eldest son for well over a year, and deprived AA of his mother and family home and family life for that same period. Ms N’s deep sense of loss and of the injustice she perceived was done to her by the removal of AA from her care was demonstrated again and again in her evidence at trial, and it is described in her victim impact statement. The injury to and violent death of a baby in unexplained circumstances made it almost inevitable that AA would be removed from the care of the offender and Ms N. AA was placed with strangers, to his detriment (no matter how caring those strangers were) and to the detriment of his mother. Although the grief at Baby A’s death was so great that this additional harm may not be of great significance, it is of significance nevertheless.

51. The offender’s state of mind, the fleeting period in which it was held, the short duration of the act of shaking Baby A, Baby A’s very young age and very great vulnerability, the injuries inflicted, the breach of trust, the offender’s failure to seek help for the baby, and the terrible harm done, are the “facts, matters and circumstances” of most significance in assessing the gravity of the crime. The offence occurred in the family home where the baby should have been safe, although that is a feature to some extent encompassed by the breach of parental trust this crime represents.

Moral Culpability

52. The moral culpability of a parent who murders his or her child must be, as a general statement, very high because of the obligation that rests on the parent to care for that child. There is no greater duty than to care for and protect a child, and no breach of that duty more deserving of blame than to murder him. Other features are of relevance to the offender’s blameworthiness.

53. A mental illness from which an offender suffers may have an impact on the moral culpability of an offender, and I have concluded that it has that relevance in the offender’s case. Although there is no satisfactory evidence that the offender was depressed at the time of Baby A’s murder, I accepted that he would have been adversely affected by PTSD, and it is reasonable to conclude that his condition would have had some impact on his capacity to control his temper in trying circumstances. To that extent, it reduces his moral culpability.

54. Mental illness has some other relevance to the determination of sentence. Although Ms North’s opinions are largely based on the offender’s self-report, it cannot be regarded as unlikely that his childhood in war torn Kabul would have occasioned trauma, exacerbated by his long and tortuous journey over years from Afghanistan to Australia. I accept that the offender suffers as a consequence of those traumas. Whilst it is to be expected that an offender who murdered his own child and is now in gaol facing a significant term of imprisonment will be depressed and reactional depression is not in my view of great weight, because of the offender’s PTSD he is likely to be less resilient than would otherwise be the case to cope with depressive symptoms in prison, and this will have an impact on his conditions of custody.

55. I propose to recognise that feature by making a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), allowing the Court to vary the ordinary ratio of sentence in the offender’s favour, and giving him the benefit of a longer period of supervision than would otherwise be the case. That finding will also recognise the harsher conditions that prevailed in our prisons during the pandemic, and the offender’s greater isolation in the prison population because of his limited English language skills.

56. The offender’s PTSD has very little impact on the application of the principle of general deterrence; his situational depression none at all.

57. There is no evidence of remorse and that too is a feature to be considered. The offender has consistently lied about what happened to Baby A. He refused to tell medical professionals what had happened to his son, even in circumstances where he was told that knowledge of the mechanism of injury could be of assistance in treating Baby A. At his trial he actively sought to cast blame on his innocent wife for the death of their son, a stance that in the Court’s opinion was as unsupportable as it was despicable. Even now, having been convicted of his son’s murder, the offender “maintains his innocence”, to quote Ms North. The lack of remorse is ordinarily relevant to an assessment of an offender’s future prospects. It has some role to play in that regard here, but features of greater significance are the offender’s former good character, and his strong work ethic. Those positive features mean that the offender’s prospects for the future are reasonably positive, insofar as that can be judged given that his future is now some distance off.

58. That assessment has relevance in turn in that I do not think specific deterrence has a great role to play in the determination of a just sentence, as it must be unlikely that the offender will offend again in this way, or at all, even if he is ever again in the company of young children. Protection of the community is not a significant consideration for that reason. His former good character also operates to permit the Court to extend some leniency to him.

59. General deterrence on the other hand is of great significance. The courts have a role to play in protecting children from violence and harm. All too often harm is visited upon children by people who are known to them, such as a parent. The message must be understood that violently dealing with young children is very dangerous conduct which will be sternly punished by the criminal courts. All of us owe a duty to babies and children to see them protected, the courts no less than the community. General deterrence will have a role to play in the determination of sentence.

60. Ultimately, the sentence imposed must serve several purposes, including to punish the offender and make him accountable for his crime, to denounce that crime, and to recognise the harm done by it. The finding of special circumstances will address another purpose of sentencing, directed to the offender’s rehabilitation.

Ms N

61. Before imposing sentence the Court wishes to extend its deepest sympathy to Ms N, for the death of Baby A but also for the additional distress caused to her by the ordinary operation of the child protection and criminal justice systems. Ms N has suffered much. Despite that, she has remained a caring and loving mother to AA, and she strives every day for his future. Her resilience is very much to be admired.

Sentence

62. Having been convicted of the murder of Baby A the offender is sentenced to a term of 18 years’ imprisonment to date from 20 August 2020 and expiring on 19 August 2038. There will be a NPP of 12 years and 6 months imprisonment, expiring on 19 February 2033.

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Decision last updated: 14 December 2023