R v Dennis

[2009] NSWSC 1357

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Matthew Allen James Dennis [2009] NSWSC 1357

JURISDICTION:

FILE NUMBER(S):
2009/5917

HEARING DATE(S):
12/10/09-29/10/09

JUDGMENT DATE:
4 December 2009

PARTIES:
Regina (Crown)
Matthew Allen James Dennis (Accused)

JUDGMENT OF:
Barr AJ      

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Mr Wayne Creasey QC (Crown)
Mr John Spencer (Accused)

SOLICITORS:
Ms Brigid Callanan (Solicitor for Public Prosecutions)
Mr Andrew Scali (Legal Aid Commission)

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Sentence

CASES CITED:

TEXTS CITED:

DECISION:
Matthew Allen Dennis, I sentence you to imprisonment for the murder of the child I have called J. I set a non-parole period of 20 years. It will be taken to have commenced on 17 April 2008 and will expire on 16 April 2028. You will become eligible for release to parole on that day. The balance of the term of the sentence will be six years and eight months, expiring on 16 December 2034.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ACTING JUSTICE BARR

Friday 4 December 2009

2009/5917  R v MATTHEW ALLEN DENNIS

REMARKS ON SENTENCE

1. HIS HONOUR:  The offender, Matthew Allen Dennis, has been found guilty by the jury of the murder of a child whom I shall call J.  J, the son of Ms Kristle Malcolm, was 23 months old.  Ms Malcolm lived with J, and an older child in a flat in Dubbo.  She formed a romantic attachment to the offender, who regularly visited her at the flat and used to stay overnight a few times a week.  Also living at the flat at the time of the events giving rise to the charge was a sixteen year old girl whom I shall call T.  T was a student who minded J and his sister from time to time.

2. On the evening of 20 March 2008 Ms Malcolm and T were at home with J.  Ms Malcolm’s elder child was visiting relatives in another town. Ms Malcolm and the offender corresponded by mobile telephone during the evening and each was aware that the other was intending to spend the evening with others. There was some disagreement about that and they exchanged spiteful messages early in the evening.  The offender arrived at the flat during the evening and Ms Malcolm was there. The offender had come to collect some of his belongings and stayed for a short time.  The two spoke and settled their differences. The offender left to attend his social engagement. Ms Malcolm stayed until about 11.00 pm when she left in the company of the offender’s cousin. They went to an hotel different from the one where the offender was bound. Later on the text messaging resumed and the offender expressed some irritation that Ms Malcolm and her companion were apparently intending to stay out for a good part of the night. Again, the exchanges became spiteful. Until about 02.00 am J was in the care of T. During that time T received a visit at the flat from two teenage friends of hers, whom I shall call E and N. E and N brought alcohol with them and all three drank some. E and N stayed perhaps as long as two hours and during that time T took J out of his cot where he had been sleeping and brought him out to show to E and N.  After that J remained awake, playing with his toys. At some time not long before 02.00 am E and N decided to leave. They asked Mr Boyd, the father of a friend of theirs, to collect them in his car and take them to his house. That is what happened. T would have gone with them but she was the only person at the flat to look after J, so she stayed. I am satisfied on the evidence of T, E and N that J was then awake, active, well and free from injury.

3. The offender arrived at the flat at about 02.00 am, not long after E and N had left.  He put J in the shower, something J loved, apparently to settle him down preparatory to putting him to bed.  While J was in the shower T was in the kitchen cooking food for J who had said that he was hungry.  She could hear J in the shower, apparently playing with his toys.  There was a conversation between her and the offender, who was asking for a towel, and then T heard a sound like a banging shower door and heard the offender ask J whether he was all right. During that time the offender and J were out of T’s sight. T saw the offender carry J out of the shower, lay him on a mattress and dress him in night clothes. J was lying, perhaps smiling, looking around. T took him the food she had prepared. J appeared well.  In the meantime, T had arranged for Mr Boyd to come back to collect her and take her to his house to join E and N.  As she made to leave the flat J lifted his arms towards her as though he wanted to go to her. She left. At no time before T left the flat did the offender suggest that J had hurt himself in the shower or had suffered any injury.  It seemed to T as she left that J was well. 

4. I am satisfied that T left the flat at about 02.00 am and was taken directly to the Boyd house by Mr Boyd, where she remained until she asked to be driven home at about 3.30 am. I am satisfied that Mr Boyd drove her back to the flat at that time.  There was evidence from one witness that she saw a person she identified by reference as T, arriving on foot at the flat between 02.00 am and 2.30 am, but I think that that witness was mistaken. I am satisfied on this evidence that between about 02.00 am and 3.30 am J was in the sole care of the offender. 

5. When T returned to the flat she spoke to the offender, who told her that he had just put J to bed in his cot, and not to turn the light on. Accordingly T checked J only by the light of her mobile phone.  He appeared to her to be asleep, lying in his cot.  She saw his tummy rising and falling.  I accept this evidence and find that J was then alive.  T went to sleep.  Ms Malcolm came home at about 4.00 am.  She did not look at J.

6. Not long after 10.00 am, the offender went to J and took him out of his cot.  He brought him out to Ms Malcolm, who immediately realised that all was not well.  She began screaming.  The two went downstairs to seek help from the occupant of a flat on the lower floor, the offender carrying the child.  The neighbour made a triple 0 call and ambulance officers arrived promptly, before 10.30 am, and began trying to resuscitate J.  There is no suggestion by any witness, lay or professional, that J showed any sign of life after the offender took him from his cot.  I think that he was already dead when the offender did so.  He was officially pronounced dead at Dubbo Base Hospital at 11.19 am. 

7. Dr Lyons, pathologist, carried out an examination post mortem.  He gave evidence.  Dr Moran, who for many years has specialised in the investigation of injuries to children, particularly those believed to be suspicious or non-accidental, also gave evidence.  Dr Lyons described a number of injuries to J’s head.  There were three fresh bruises to the front of the face, arranged in an equilateral triangle, one on the outer aspect of each eye and one under the chin.  The whole of the front of the skull was oedematous.  The entire left ear was bruised and swollen.  In boxing terms it was a cauliflower ear.  The right ear was bruised and moderately swollen.  Behind the right ear was an area of stippled bruising and abrasions which had a characteristic angular appearance. The appearance of the surface suggested impact by or with some blunt, patterned object.  Above the left ear was a series of stippled bruises and imprint abrasions, describing parallel lines separated by a small gap.  As with the marks near the right ear, Dr Lyons regarded them as characteristic, suggestive of an impact against the side of the head or an impact of the head against a patterned surface.  At the back of the head were two stippled parallel lines of imprinted bruises or abrasions about 25 mm long and 5 mm apart.  Those lines were crossed by a series of vertical lines, dividing the pattern into a series of rectangles.  Associated with all these marks on the right and left sides and on the back of the head were substantial areas of bruising.  Right across the parietal region of the skull, 230 mm long, stretching from just above the right ear to the left side and down into the base of the skull, was a fracture.  In the opinion of Dr Lyons, whose evidence I accept, there must have been at least three applications of force to account for the injuries to the left, the right and the back of the head.  Dr Lyons was of the opinion that the blunt force that would produce such a fracture in the malleable skull of a child of J’s age would have had to be severe.  The accidental occurrence of such an injury would in his experience occur only in a fall from a reasonable height, such as from the top of a refrigerator.  He thought that the triangle of bruises to the face and the patterned abrasions to the back of the head might have been produced by a hand placed on the face with the fingers overlying the eyes and the head then pushed against a hard surface.  Dr Lyons also noted bruising to the mesentery, possibly caused by a kick or a punch.  Death resulted when the subdural bleeding, caused by the impacts to the head, raised pressure within the cranium and compromised the brain function, eventually leading to breakdown of the cardio-pulmonary functions and leading to cardiac arrest.  On microscopic examination of preserved brain tissue, Dr Lyons noted changes which would not have become detectable unless J had lived for about one and a half hours at least after the injuries were sustained.  That, he said, was consistent with the infliction of injuries between 02.00 am and 3.30 am and with death at or before about 10.00 am.

8. I am satisfied on this evidence that the offender dealt J at least three blows with some hard instrument which cannot be identified or pushed J’s head at least three times against a hard blunt patterned surface, which might have been a wall.  I am satisfied that the force imparted was severe.  I am satisfied that the offender assaulted J at some time between 02.00 am and 3.30 am, before T returned to the flat.  It is possible, as Dr Lyons surmised, that the bruising to the mesentery might have been caused by a kick delivered by the accused, but I am not satisfied about that because the injury might have resulted from attempts to resuscitate the child.

1. I find that the offender put the child back into his cot alive and breathing, and that raises a reasonable doubt whether he intended to kill him. I am, however, satisfied beyond reasonable doubt that he had the intent to inflict really serious bodily injury.

2. At the time of the events the offender was 19 years old, having been born on 14 September 1988. He is now 21 years old. He comes from an Aboriginal family and grew upon the Gold Coast of Queensland. According to Dr Lennings, psychologist, whose report was tendered on his behalf, he denies suffering any childhood abuse, though his father reportedly tried on an occasion to choke him. His mother became ill when he was about 9 years old and died when he was 15 years old. He had had an excellent relationship with her and was very upset at her death. He still weeps when thinking about her and has not coped well with her death. Dr Lennings considers that he has an unresolved grief reaction which has not abated over the years. I accept that opinion.

3. During his mother’s illness the offender cared for the younger children of the family. After her death he continued to support his father in the care of a younger brother and sister.

4. The offender began to drink alcohol at age sixteen and has drunk reasonably heavily on some weekends. Dr Lennings thinks that he has “a binge drinking profile”, though he remains conscious of his responsibilities when he drinks. It is not suggested that he has been in fights or has otherwise misbehaved while drinking. He will need assistance in developing ways in managing his desire for alcohol.

5. After leaving school the offender worked as a wardsman in a hospital for a year before going to a charitable venture and then moving into a job as a case worker for the Department of Community Services. He was the youngest person so appointed. He has spent much of his young adult life working with disadvantaged children and young people, many of them homeless.

6. He is a young man of exemplary character. He has never before been in trouble of any kind. I do not think that he will offend again.

7. Dr Lennings performed standard psychological tests to assess the offender’s intelligence. His performance on verbal tests placed him in the bottom 7 per cent of the population, which tallied with Dr Lennings’ observations at interview that he sometimes has difficulties explaining himself. His non verbal skills were reasonable, with the result that his overall cognitive ability is better than the bottom 27 per cent of the population. Other tests demonstrated that the offender has no obvious cognitive difficulties.

1. The features of this case which would ordinarily be regarded as aggravating the seriousness of the offence and sounding in the sentence, apart from those inherent in the nature of the offence of violent murder itself, are that the offender’s act constituted an abuse of a position of trust and that the offence was committed in the house of a person who, because of his tender age, was vulnerable. However, those matters in effect determine the standard non-parole period for this offence, and they must not be brought into account twice.

2. The evidence satisfies me that the offender and J were fond of each other. As a rule, the offender treated the child well. He had minded him on previous occasions and there is no suggestion that he had ever harmed him. The evidence does not enable me to identify why he attacked him on that occasion. I do not accept the Crown’s submission that it may have been a manifestation of the offender’s anger at Ms Malcolm. It seems possible, though it can be put no higher, that the child misbehaved and that the offender overreacted, being disinhibited by the alcohol he had doubtless consumed. He was described by others as being “tipsy, not drunk”, earlier in the evening, or “a little bit tipsy”.

3. I may say confidently that the offender’s assault on J was out of character. He is entitled to consideration for his prior good character and because, whatever led to the attack, it was unplanned.

4. I was invited by Mr Spencer to find the offender remorseful, particularly in view of his behaviour when he took J to the neighbour’s to seek assistance in summoning first aid and in attempting by cardio-pulmonary massage to resuscitate the child.

5. I accept that the offender was then genuinely concerned for the child’s welfare, and that in realisation of the serious consequences of what he had done. One may say that the beginnings of remorse were there. However, the offender told Dr Lennings that he had no knowledge of the offence, maintaining, as had been put to the jury on his behalf, that J had had a fall in the shower, and asserting ignorance as to how the child could have received his injuries. I think that he is sorry and will come in time to acknowledge his responsibility. I think that he has reasonable prospects of rehabilitation.

6. The offender has been held in custody since his arrest on 17 April 2008. He is at risk of attack from members of the general gaol population because of the nature of his offence. So far, that problem has been solved by having him on protection. Unfortunately that has created other problems. He has been out of his cell for only 2 hours during any period of 24 hours and so far as I can tell that state of affairs may continue for some time. I am aware that this kind of problem is one which the authorities recognise and which should ultimately be able to be managed better than it has been so far, but I think that the peculiar situation in which the offender finds himself will make it harder for him to serve his sentence. It is possible that with proper management he will be able to participate in a good range of remedial programs offered within the corrective system, though plainly that cannot happen as long as he continues to be held in the conditions which obtain at the moment. The risk of threat to his full participation in rehabilitative programs is something that I intend to allow for in fixing the sentence and the non-parole period.

7. The standard non-parole period for the murder of a child under the age of 18 years is 25 years. Such a non-parole period would apply to a case in the middle range of objective seriousness. I bear that in mind.

8. The manner of the attack on such a young child and the serious nature of the resulting injuries tend to make this objectively a more serious case. There are balancing features, however. The offence was unplanned and must, I think, have resulted from sudden anger and loss of self control. I am not satisfied that there was any intent to kill. In my opinion this case falls in about the middle range of objective seriousness, perhaps a little below it.

9. There are strong subjective features. The prior good character and remarkable work history of the offender help him. So do his young age and good prospects and the fact that he will have to serve at least a substantial part of his sentence on protection.

10. It was not submitted that I should vary the prima facie relationship between non-parole and parole periods and I do not think that I should. In my view the period of parole that I have allowed for will be sufficient to enable the offender to begin to make his way again in the community with the support of officers of the Probation and Parole Service. In any case, the non-parole period is in my opinion the minimum that could be imposed for an offence as serious as this one.

11. A statement was signed by Ms Malcolm describing how the death of J has affected her. That is not a matter that I may take into account in determining the sentence, but the Court extends its sympathy to Ms Malcolm and all those who have been touched by these events.

1. Matthew Allen Dennis, I sentence you to imprisonment for the murder of the child I have called J. I set a non-parole period of 20 years. It will be taken to have commenced on 17 April 2008 and will expire on 16 April 2028. You will become eligible for release to parole on that day. The balance of the term of the sentence will be six years and eight months, expiring on 16 December 2034.

LAST UPDATED:
4 December 2009