R v BT

[2017] NSWSC 1600

Supreme Court

New South Wales

Medium Neutral Citation:	R v BT [2017] NSWSC 1600
Hearing dates:	3 November 2017
Date of orders:	24 November 2017
Decision date:	24 November 2017
Before:	Hidden AJ
Decision:	Sentenced to 8 years, NPP 5 years, from 14 November 2015.
Catchwords:	CRIMINAL LAW – Sentence – manslaughter – plea of guilty entered after trial for murder in which the jury acquitted of murder but could not agree on manslaughter – killing by father of infant child
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Dalton [2005] NSWCCA 156 R v Marshall [2003] NSWSC 448 R v Monroe [2003] NSWSC 1271 R v Shepherd [2010] NSWSC 154 R v Toohey (No. 2) [2017] NSWSC 1217
Category:	Sentence
Parties:	Regina BT
Representation:	Counsel: Ms M Cunneen SC with Mr PJ Strickland (Crown) Mr H White (Offender)   Solicitors: Solicitor for Director of Public Prosecutions (NSW) McWilliams Lawyers
File Number(s):	2015/335406
Publication restriction:	No

1. HIDDEN AJ: On 14 September 2017, this offender pleaded guilty to the manslaughter of his baby daughter, HT, on or about 12 August 2014 at the family home at Regents Park. I shall refer to the deceased child as “the baby”. Between 17 July and 15 August 2017, he stood trial before me for the murder of the baby. The alternative verdict of guilty of manslaughter had been left to the jury. The jury found him not guilty of murder but were unable to agree upon a verdict on manslaughter.

Facts

2. I received a statement of agreed facts contained in the Crown material, Exhibit A. The parties were agreed that, notwithstanding the evidence adduced in the trial, the offender should be sentenced on the basis of the facts contained in that statement. It is not necessary in these reasons to set out those facts in detail. I shall summarise them relatively briefly.

3. At the relevant time the offender was in a relationship with a woman, TP, and the baby was the second of their children. They also had a son, JP, who was just under 2 years old at the time. TP also had two other children from a previous relationship, a daughter, TF (aged 6 at the time) and a son, CF (then aged 4). They also lived at the Regents Park home, as did other members of TP’s family.

4. The baby was born prematurely on 14 June, 2014, and due to respiratory problems remained in hospital until 29 June. She was then well enough to be discharged into the care of her parents at their home. At the time of her death, on 12 August, she was aged 8 weeks and 3 days.

5. In a recorded interview with police, summarised in the statement of facts, TP gave an account of the course of events on 11 August 2014 and the early hours of 12 August. This discloses that for a period in the afternoon of 11 August, the only people at the home were the offender, JP and the baby. When TP later returned home, the baby was asleep in the bassinet in the room which TP occupied with the offender. He was responsible for feeding and caring for the baby for the remainder of the evening and the night. During the evening she watched television in the lounge room, while he was in the bedroom with the baby. At about midnight she went to sleep on a couch in the bedroom, while he was asleep on the bed with JP and the baby.

6. At about 4.00am on 12 August, TP woke up. She noticed that the baby was struggling to breathe and then suddenly stopped breathing. It is sufficient at this point to say that TP called the 000 emergency line and attempts were made to resuscitate the baby by family members and by ambulance officers who arrived, without success. The baby was taken to Westmead Children’s Hospital and was pronounced dead on arrival there at 5.33am.

7. A post mortem examination was conducted by Dr Issabella Brouwer, who reported that the baby died as a result of a blunt force craniospinal injury caused by a substantial impact to the back of the head, resulting in an occipital skull fracture. Dr Brouwer’s diagnosis was confirmed by a neuropathalogical report of Dr Michael Rodriguez. In a further report, Dr Brouwer expressed the opinion that the injuries she observed “suggest a focal impact to the back of the head by an object, most likely firm, but soft with a large surface area.” She continued:

The impact to the back of the head most likely resulted in the blunt force injuries observed to the brain and cervical spine as described in the Neuropathology report. The injuries to the cervical spine further suggest hyperextension/flexion injury of the neck, which may be secondary to the movement of the infant’s head due to the impact to the back of the head.

8. The offender was interviewed by police on a number of occasions prior to his arrest. Throughout those interviews he did not admit having committed any act consistent with the act postulated by Dr Brouwer as the cause of death, and denied any knowledge of how the fatal injuries were caused. He was further interviewed on 14 November 2015, the day he was arrested and charged, and in that interview he said for the first time that he had accidentally dropped the baby on the bedroom floor, which he described as “hard”.

9. The offender pleaded guilty to manslaughter on the basis that he had caused the baby’s death by an unlawful and dangerous act. He admits that that act was of the kind postulated by Dr Brouwer, that is, that he caused the substantial impact injury to the back of the baby’s head leading to the occipital skull fracture, resulting in the craniospinal injury that ultimately led to her death. He maintains that, at or about this time, he accidentally dropped the baby onto the floor, but by his plea of guilty he does not attribute the baby’s death in any way to his having done so.

Victim impact statement

10. I received a touching victim impact statement from the baby’s half-sister, TF, who is now 9 years old. Her statement was taken by a child protection counsellor in the local health district where she now lives. It is partly handwritten and partly expressed by drawings of herself which exhibit her feelings. It discloses that at the time of the incident leading to the baby’s death, she felt “sad, scary, shocked and shaky”. It describes the impact on her life of having to be taken into care after the event. It conveys an improvement in her mood with the passage of time, but adds that when she thinks about what happened, she still cries.

11. The unfortunate young girl has my deepest sympathy, as do all the members of the family who have had to endure this tragic loss.

Subjective case

12. The offender was 25 years old at the time of the offence and is now 28. He has a lengthy criminal history, although most of it is of little significance for present purposes. There are a number of entries in the Children’s Court between 2005 and 2007, commencing when he was 15 years old. They comprise mainly offences of dishonesty, together with some driving offences and drug offences and one of common assault. As an adult, there are again entries for dishonesty and property offences and driving offences. More significantly, however, there are further entries for common assault, some of which led to terms of imprisonment, and in 2008 he was sentenced to imprisonment for robbery in company.

13. Most significantly, on 16 September 2015 he was sentenced for two counts of assault occasioning actual bodily harm, the victim being his partner, TP. The offences occurred on 1 October 2014, after the event with which I am concerned, and he was sentenced to imprisonment for 18 months from 1 October 2014 with a non-parole period to expire on 14 November 2015. It was upon the expiration of that non-parole period that he was arrested and charged in respect of the present offence.

14. The offender’s criminal history must be understood against the background of his disturbed upbringing, which is sketched in a psychological report of Mr Anthony Diment. His father was a truck driver, who apparently had difficulty maintaining employment and who spent periods of time in prison. His mother was an alcoholic, who was violent towards him. He recounted an occasion when he was 10 or 11 years old, when she tried to stab him with scissors. From the age of 8 he spent periods in foster homes. He has two younger sisters, with whom he has had no contact.

15. His parents separated when he was about 12 years old. His sisters remained with his mother but, because of her problems, went into care. He remained with his father, with whom he appears to have maintained a satisfactory relationship. He has had no contact with his mother for some years.

16. He left school in year 8, aged about 14, and worked at various casual jobs, including as an offsider on his father’s trucks. At the time of the offence he was unemployed. He drank alcohol from his mid-teens, but alcohol consumption does not appear to have been a problem for him. He has used illicit drugs, principally cannabis, which he has used heavily on and off from his mid-teens until his arrest for the present matter. He told Mr Diment that he was always “hanging around the wrong people”, and that when he got into trouble over the years, “it was to do with getting money to pay for drugs.” He has now been drug and alcohol free for the period of roughly 3 years he has been in custody.

17. He met TP in 2011. He told Mr Diment that, after the baby was killed, she was not able to look after the other children. He added that she is trying her best to do so, that she has had counselling and that she hopes to get her children back. Mr Diment interviewed TP, who told him that she remains in contact with the offender and that she definitely wants to stay in the relationship with him. She said that he had had “a hard past” but had always respected her. She added that he was “never violent – just a nice, quiet person.” In the light of his conviction of two counts of assault occasioning actual bodily harm perpetrated upon her, this is clearly untrue. Counsel for the offender, Mr White, did not rely on it.

18. The offender expressed remorse for his offence to Mr Diment, who observed him to be upset and sometimes close to tears when discussing it. He said that he was very sorry about it and that it was “always there”. He added, “I blame myself... . It was an awful accident. Always in my mind.” He described it as “a terrible thing for everyone... .” He also told Mr Diment that in prison he kept to himself, that so far no one knew why he was there, but that he was worried about what might happen if someone found out. He added, “It is tense but I think a lot about things. That’s one good thing about being in here.” Mr Diment considered that, while the offender might be seen as a man of few words, he had expressed his “deep remorse” about the baby’s death.

19. From psychological tests and his own clinical assessment, Mr Diment concluded that the offender met the diagnostic criteria of substance abuse disorder, although now in remission, and also a persistent depressive disorder of moderate severity (in effect, chronic depression). He saw this condition as “partly commensurate” with his situation awaiting sentence, but also attributed it to “longer-standing emotional problems arising in his earlier years from violence at the hands of an alcoholic mother.” He added that, over the period the offender has been in custody, he appears “to have given more mature thought” to his future and to TP, and is “prepared to re-engage” with his son, JP. Mr Diment saw this as “a favourable prognostic sign for his future adjustment.”

20. Nevertheless, Mr Diment remained concerned about his emotional state, and was of the view that he would benefit from “psychiatric assessment of his depression with the possibility of introducing anti-depressant medication and psychological treatment counselling to monitor his mood and assist with future adjustment.” The offender said that he wanted to stay off drugs, disassociate from former acquaintances, eventually to find a home for himself and TP, and to work “at anything I can do.” Mr Diment recorded that he also requires assessment for an “appropriate drug relapse prevention/drug and life skills education program”, such as the SMART program, in custody and on his eventual release, and that he would benefit from whatever vocational training is available through Correctional Services Industries. He noted that the offender was agreeable to all these recommendations.

Sentencing factors

21. This is a serious example of the offence of manslaughter. For a parent to inflict fatal violence upon a child, whatever the circumstances, is a grave offence. The baby was barely two months old when she was killed. The offence was a most serious breach of trust and an abandonment of the responsibility which a parent bears for the care of his or her child. The baby was a most vulnerable victim, an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999.

22. The Crown Prosecutor submitted that the offence was also aggravated by it having been committed in the presence of the child, JP: s 21A(1)(ea). I understand that submission to have been made upon the basis that the offence occurred in the afternoon of 11 August, while only the offender, JP and the baby were at the home. That may be so, but it is not necessarily the case. The agreed facts do not specify at what stage over the period from 11 to 12 August the offence was committed. In any event, while JP may well have been present in the house whenever the incident occurred, the facts do not disclose that he was in the room where it occurred, so as to be aware of it. I do not find that aggravating feature here.

23. While the offence is inherently serious, the statement of facts does not disclose exactly how the offender inflicted the fatal injury upon the baby, nor the circumstances in which the incident occurred. On the limited material before me, I could not find that the offender’s act was planned or premeditated, and he stands for sentence on the basis that it was spontaneous. Otherwise, the degree of his moral culpability cannot be determined.

24. Although the information about the offence is spare, I accept that the offender is remorseful. So much is apparent from the report of Mr Diment, and the plea of guilty itself provides some evidence of his remorse. Given the outcome of the trial which he has undergone, there may have been some prospect of his being acquitted of manslaughter on a retrial. By his plea of guilty he has abandoned any such prospect.

25. With some force, the Crown Prosecutor questioned the extent of his acceptance of responsibility for his crime, noting his description of the incident to Mr Diment as “an awful accident”. Of course, by his plea of guilty he admits having caused the baby’s death by a deliberate act and, as I have said, he does not call in aid his claim that he accidentally dropped the baby. On the other hand, the offence being manslaughter, he does not stand for sentence on the basis that he intended to kill her (or even to cause her really serious injury). In common parlance the word “accident” is sometimes used to denote an act which was not deliberate. On other occasions, however, it is used to denote an act which was deliberate but which had unintended consequences. It may be in the latter sense that the offender used the word. On that matter I am prepared to give him the benefit of the doubt.

26. He has a criminal record, which includes entries for violence, although nothing of the nature or gravity of the present offence. However, as I have said, his criminal history is fairly to be assessed against the background of his troubled upbringing. Mr White prepared a schedule of the sentences he has served over the 10 year period until today. When there is added to those terms the time which he has been refused bail in respect of this matter, it emerges that over that period he has spent, in round figures, 5 years and 9 months in custody. I accept Mr White’s submission that this demonstrates a measure of institutionalisation which should be reflected in a finding of special circumstances.

27. It appears from Mr Diment’s report that the offender is trying to come to terms with his troubled and lawless past and is reflecting upon his future, demonstrating a measure of maturation. He has the continuing support of his partner, TP. Her false claim that he had never been violent casts doubt upon her capacity to acknowledge, and deal with, his failings. Nevertheless, I accept that her support and his re-engagement with their son, if that can be achieved, would be beneficial to him. With the program of treatment, counselling and training proposed by Mr Diment, I believe that he has reasonable prospects of rehabilitation.

28. I find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. I accept Mr White’s submission that after what must be a long period of custody yet to serve, and in the light of the total period of custody he has served over recent years, his rehabilitation would be fostered by a lengthy period at liberty under supervision and the sanction of parole.

29. I note the offender’s understandable fear, expressed to Mr Diment, about the nature of his offence becoming known in the prison community. It is likely that he will spend the whole of the custodial portion of his sentence, or most of it, in protection. I take that into account, although enquiries made by the Crown of the Department of Corrective Services convey that that status would not deprive him of the opportunity to participate in rehabilitative programs.

30. Not only did the offender plead guilty when indicted for manslaughter; he had made an offer to plead to that offence before his trial, but the Crown declined to accept it. Mr White submitted that, against that background, the utilitarian value of his plea of guilty should earn him a reduction of sentence of the order of 15-20%. The Crown Prosecutor made no submission about this matter. I think that a 20% reduction is appropriate.

31. The sentence will date from the day on which he was arrested in respect of this matter, 14 November 2015. As I have said, he had been in custody since 1 October 2014. However, that period is referrable to the entirely discrete offences committed against TP, and I do not consider it appropriate to back date the sentence which I must pass to take account of any part of it.

Sentence

32. Counsel referred to a number of sentencing decisions in cases of the manslaughter of infant children. Reference to other cases of a similar kind is helpful to a sentencing court provided that it is understood that each of them turned on its own facts and circumstances, objective and subjective, and together they cannot set the parameters for sentence in the case at hand. One of the cases to which I was referred was a decision of the Court of Criminal Appeal: R v Dalton [2005] NSWCCA 156, a successful Crown appeal. The other cases were sentences at first instance: R v Marshall [2003] NSWSC 448, R v Monroe [2003] NSWSC 1271, R v Shepherd [2010] NSWSC 154 and R v Toohey(No. 2) [2017] NSWSC 1217.

33. It is not necessary to go to the detail of these cases. In three of them sentences were passed after a conviction at trial. In the others there had been pleas of guilty. In each case the offender was either the parent of the victim or stood in loco parentis to the victim. The sentences ranged from 6 years to 9 years, and non-parole periods from 3 years to 4 ½ years.

34. As I have said, the present case is one in which the offender will be sentenced on the basis that his conduct causing the death of the baby was spontaneous, but otherwise no feature mitigating the objective gravity of the offence can be identified. He does not have the benefit of a clear criminal history, but proper weight must be given to the favourable aspects of his subjective case to which I have referred. In the light of his prospects of rehabilitation, personal deterrence does not stand at the forefront of this sentencing exercise but, of course, general deterrence remains an important consideration.

32. Taking into account all the circumstances, my starting point of sentence would be imprisonment for 10 years. A 20% reduction in recognition of the utilitarian value of the plea of guilty produces a figure of 8 years. Finding special circumstances, I shall impose a non-parole period of 5 years.

33. Accordingly, the offender is sentenced to a non-parole period of 5 years, commencing on 14 November 2015 and expiring on 13 November 2020, and a balance of term of 3 years, commencing on 14 November 2020 and expiring on 13 November 2023. He will be eligible for release on parole on 14 November 2020.

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Decision last updated: 24 November 2017