R v Clay
[2003] VSC 428
•7 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1429 of 2003
| THE QUEEN |
| V |
| STEWART THOMAS CLAY |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2003 | |
DATE OF SENTENCE: | 7 November 2003 | |
CASE MAY BE CITED AS: | R v Stewart Thomas Clay | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 428 | |
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Criminal Law - Sentencing - Manslaughter - Killing by father of 3 week old son - Pressing in on head causing skull fractures - Many mitigating factors - Prison for 6 years - Non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. McArdle Q.C. | Office of Public Prosecutions |
| For the Accused | Mr B. Bourke | Victoria Legal Aid |
HIS HONOUR:
Stewart Clay. You have pleaded guilty to manslaughter. You killed Zachary Clay on 11 March 2003. Zachary was then 22 days old. He was born on 17 February 2003. You were his father. His mother was Susan Rohan. You had met Susan in April 2002. She had already two daughters, one born in March 1991, the other in January 1995. You were the father of a daughter, Brittany born in March 1999.
Susan became pregnant not long after you met. The pregnancy was not planned. The pregnancy was a troubling one for Susan. At times you said things that indicated that you would have preferred that she had had an abortion. She suffered at times from depression. At one stage during the pregnancy, she had to have an operation for gall stones.
Zachary’s birth was a troublesome one. The delivering doctor had to take emergency steps at a crucial stage. In the process Zachary’s left arm was broken. In the three weeks that he lived, he was seen twice by doctors at Warrnambool and once at the Royal Children's Hospital in Melbourne. During that time, you were, and you were seen to be, ready to assist both Susan and Zachary to a highly commendable extent. Commendations were provided by family members and by doctors and others who saw you and Susan and Zachary.
In those three weeks, Zachary was not an easy baby to deal with. In part, that was because of his broken arm. There were also problems at times with feeding him. He was prone to vomit. At times, there was blood in his vomit. Such problems meant there was a need to seek medical attention. He was seen only 24 hours before the fateful time. Getting him to sleep was as much a problem as feeding him. He was slow to settle. He was quick to re-waken and to grizzle. That made life difficult for you and for Susan. She continued to suffer from depression after the birth. You both suffered from lack of sleep. Your work was physically demanding and you needed good sleep. You and Susan were stressed. That was so for a variety of reasons, Zachary heading the list.
On the night of 10 March 2003, you were sleeping at Susan’s home on the Curdie-Leichfield Road at Cobden. You went to bed around 11 p.m. You were due to get up to go to work at 6 a.m. Susan woke you not long after midnight. She asked you to take over caring for Zachary. Susan said to give Zachary a bottle at 1.30 a.m. if he did not settle. You nursed him on the couch, watching TV for a while. Around 1 a.m., you changed his nappy.
Around 1.30 a.m. you took him into the kitchen. You heated his bottle in the microwave. You needed to take a teaspoon from the cutlery drawer. The teaspoon was for wind drops that were kept nearby. You were holding Zachary in your left arm with his arms and legs dangling. You closed the drawer with your hip. It seems that you must have jammed Zachary’s little finger as you closed the drawer. He cried out. You turned around. In doing so, you bumped his forehead on the handle of another drawer. He appeared to settle. You gave him the wind drops. You fed him from the bottle. You burped him 3 or 4 times. He was still very grizzly. Around 2 a.m., your thoughts were on your lack of sleep. Zachary was the cause of it.
Zachary started to grizzle really badly. You stood up. You walked around the kitchen holding him. He sat in your elbow with his face towards you. You had his head cupped in your right hand. He started screaming. That made you feel even more frustrated. You said: “For fuck’s sake, will you just be quiet.” You put your left hand around the back of your right hand. With the pressure of two hands you pushed in on his head. You are a strong man, and you knew it. Zachary’s skull was soft bone, and you knew it. You were angry, because you wanted to sleep. Through your fingers, you felt something go click at the back of his head. You had crushed in his skull, causing bleeding that inevitably led to his death. Not immediately, but within a short time, you alerted Susan. The two of you rushed to hospital, but it was to no avail. Resuscitation measures were commenced. Before long, they had to be terminated.
At first, you chose to tell most, but not all, of the story of what happened in the kitchen to Susan and to the local police and to others. You chose not to tell anyone about your skull-crushing action initially. You did so only after the autopsy. I need not go into the detail of the autopsy results. It will suffice to say that there were skull fractures causing major bleeding. The fractures were consistent with the inward pressure on a soft skull from the fingers of a strong man. You knew that you had acted wrongly. You said so after the autopsy when questioned by members of the Homicide Squad.
I have read carefully the victim impact statements written by Susan Rohan and by three other family members. They are her mother, her father, and her sister-in-law. Not surprisingly, they have been devastated by Zachary’s death. Their grief and loss has been reflected in many ways.
I turn to your personal circumstances. You are 32 years of age, having been born in December 1970. You are the second of four boys, all raised in a caring family situation. It is apparent that you have, and will continue to have, the support of your family. Your schooling was not extensive. That is consistent with the IQ assessment made by Bernard Healey. His report provides more details of your background. The two occasions that brought you into court many years ago were minor. They can be ignored for present purposes. You were married for only a couple of years, before your wife took an interest in another man, and left you. You had access rights to Brittany, and made appropriate and caring use of those rights.
As to your good character, I have listened to the six witnesses at the plea. I have read the 22 references tendered on the plea. They are an impressive array of people, saying an impressive range of good things about you. Many have said that what happened was out of character. Many have spoken of the loving attention given by you to your daughter Brittany; and of your major contribution to community activities, particularly the Camperdown Horse Trials; and of the distress and sorrow that you have shown at the death of Zachary. Many also refer to you as being hard working. That is clearly right, given your preparedness to run your own business as well as managing another business. There may be a downside to that capacity to work hard. Working may have been given undue priority over other matters warranting your attention.
I take account of the fact that all the indications are that you have been grief-stricken at, and are genuinely remorseful for, Zachary’s death. You co-operated with the police. You have pleaded guilty to manslaughter. You did so at what was effectively the earliest possible time. You have in prison done an anger management course and achieved enhanced prisoner status. Your prospects of rehabilitation could only be rated as excellent.
I have taken into account what has been said recently by a number of judges. Those judges were handing down or considering sentences imposed on young men for manslaughter for the killing of babies or young children. In a general comparative sense, your actions causing death were less troubling and the mitigating factors applicable to you are more favourable. But it is not all one way. Your remarks to others including Susan Rohan as to Zachary reflected some ambivalence if not malevolence towards him. Your remarks to the police revealed a significant level of anger and frustration with Zachary at the crucial time. As I have noted, you were highly, perhaps too highly, work-focused. Moreover, you did initially choose not to disclose your action in applying pressure to his head.
Your actions were seriously criminally wrong. Your conduct involved a grave breach of trust. You had in your hands a very young, vulnerable and ill child. You let your frustration get the better of you. That cost Zachary his life. The community and the Courts must and do place a high value on the sanctity of life.
Not without reflection, given the circumstances, I have signed the order for the taking of a blood or saliva sample. I declare, and direct it be recorded, that the period of pre-sentence detention is 231 days. I impose a sentence of 6 years imprisonment. I fix a non parole period of 3 years.
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