R v DF

[2022] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation:

R v DF [2022] NSWSC 762

Hearing dates:

6 May 2022

Date of orders:

28 June 2022

Decision date:

28 June 2022

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

See [66]

Catchwords:

CRIME — manslaughter — sentence after guilty plea — objectively very serious crime — offence committed by mother of deceased — no mitigating circumstances

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 30E(3), 44(2)

Cases Cited:

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Isaacs (1997) 41 NSWLR 374

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Texts Cited:

Not Applicable

Category:

Sentence

Parties:

The Crown
DF (Offender)

Representation:

Counsel:
M Kumar (Crown)
I McLachlan (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
Aquila Lawyers (Offender)

File Number(s):

2019/57048

Publication restriction:

Suppression order made by Hulme J on 9 April 2021. Suppression order made by Garling J on 8 April 2022.

Judgment

1. On 16 February 2022, DF (“the Offender”) pleaded guilty to the manslaughter of her son AAF (“the Deceased”) who was then aged 2 years and 5 months.

2. The Offender was arrested on 20 February 2019 and has remained in custody since that time. The trial of the Offender, who was arraigned on a charge of murder, was due to commence before me on 15 February 2022. The Offender had pleaded not guilty to this charge at all times. On 16 February 2022, the Offender pleaded guilty to manslaughter which was accepted by the Crown in full discharge of the indictment.

3. It is now time for the Offender to be sentenced for her crime. The maximum penalty for the offence of manslaughter is 25 years. No standard non-parole period is applicable. The maximum term of imprisonment is a guidepost which a court must have regard to when imposing a sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

The Statutory Regime

4. The Parliament of NSW has fixed in s 3A of the Crimes (Sentencing Procedure) Act 1999 the purposes for which a court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of an offender; to prevent crime by deterring others and the offender from committing similar offences; to protect the community from an offender; to promote an offender’s rehabilitation; to make an offender accountable for his or her actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of an offender.

5. These purposes obviously overlap and are often in tension: Muldrock at [20]. The purposes of ensuring adequate punishment of an offender and promoting an offender’s rehabilitation, for example, are not always compatible. None of the purposes of sentencing can be considered in isolation.

6. Section 21A of the Crimes (Sentencing Procedure) Act also requires the Court to take into account, where relevant, a number of aggravating and mitigating factors in determining an appropriate sentence. The legislation does not require a court to increase or decrease a sentence because of the presence or absence of these factors: s 21A(5).

Common Law Principles

7. Over time, the Courts have developed legal principles to guide the exercise of the sentencing discretion by Judges. These common law principles are to be found in decided cases. Of relevance in these circumstances is the principle of proportionality, namely that the sentence should be proportionate to the gravity of the offence.

8. The common law principles have continuing relevance because s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as being relevant to sentence, such as whether incarceration may be particularly burdensome, are also to be taken into account: Muldrock at [19].

9. What the sentencing task requires of a Judge is that they have regard to the relevant legislation, including the purposes of sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, the aggravating and mitigating factors and the principles of the common law. Against that legal framework, the sentencing Judge has to identify the significance of all the relevant factual circumstances of the offending and the offender. The sentencing Judge is then able to undertake an “instinctive synthesis” whereby he or she “makes a value judgment as to what is the appropriate sentence given all the factors of the case”: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock at [26].

10. As the instinctive synthesis approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence. I will bear in mind the legislation by which I am bound, and the common law principles developed by the Courts, when proceeding on the task of sentencing this Offender.

The Facts

11. A signed Statement of Agreed Facts was tendered before me. It is an exhibit. It is unnecessary to repeat all of the Statement of Agreed Facts here. However, it is necessary to set out the relevant findings of fact which are made for the purposes of sentencing.

12. In setting out the findings of fact which I have made it is important to note that I am not entitled to make a finding of fact against the Offender for the purpose of sentencing unless I am satisfied beyond reasonable doubt of that fact. Any finding in favour of the Offender needs only to be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

13. Any finding of fact which I make on sentence must be consistent with the conviction for the offence to which the Offender has pleaded guilty: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14] citing R v Isaacs (1997) 41 NSWLR 374 at 377-378.

14. The Offender at the time of the offence was 25 years old and live with a 34‑year-old man, MA. Together the Offender and MA lived with four children, three of whom were alive at the time of the Deceased’s death and a fourth child who was born about 4 months after the Deceased died. The Deceased had an older brother, L, who was 6 years and 6 months at the time of the offence. MA was not his father. He also had a younger brother who was about 14 months old. The family resided together in an apartment in a Western Sydney suburb.

15. The Offender stayed at home to look after the children whilst her partner worked as a self-employed tradesman.

16. On 3 August 2018, the Deceased was at home and being looked after by either his mother or father. The Offender took her eldest son to school and collected him from there between 2.30pm and 3.00pm. During this time, the Deceased was at home with his father.

17. The Offender then had the sole care and custody of the three children from about 4.30pm until about 6.20pm that evening. That was because the father had left home to do some work with respect to his trade.

18. The Offender’s partner arrived home around 6.20pm and went to his bedroom. At a time after about 6.20pm and before 7.30pm, the Offender assaulted the Deceased, which assault inflicted injuries on the Deceased that caused his death. Those injuries, which were described as blunt force injuries, were recorded as follows:

“a.   Internal injuries –

i.   Major trauma to abdomen. The Deceased had multiple injuries to his abdomen. The types of internal injuries seen in [the] Deceased can be seen as the result of motor vehicle accidents (seatbelt injuries), children who have been hit by a car, injuries from bicycle handlebars (in older children) or injuries such as being kicked by a horse. The Deceased’s presentation with multiple severe internal injuries to his abdomen was highly suspicious of inflicted injuries such as sudden forceful blows to his upper abdomen e.g., punches or kicks.

ii.   Internal injuries to chest. Multiple internal injuries to [his] chest which would have been caused by a highly forceful blunt force impact trauma to his chest. The most common causes of these types of injuries are high speed motor vehicle accidents or being hit by a car. These injuries are highly suspicious for inflicted injuries such as sudden forceful blows to [the] chest e.g., punches or kicks.

iii.   Lacerations to oesophagus. The severe blunt force trauma to [his] chest and upper abdomen is likely to have caused the oesophageal lacerations. The lacerations to the oesophagus suggest that these injuries were sustained prior to being offered the ice cream but after he was last observed to eat food normally.

b.   Bruising. The Deceased’s presentation with multiple bruises to multiple aspects of his body would not be explained by normal activity and play; play with his siblings or a fall/s downstairs.”

19. The assault was witnessed, at least in part, by the Offender’s eldest son, L, who observed the Offender hitting the Deceased. He observed that the Deceased was sad and crying and that he was not able to walk down the stairs to the Offender’s motor vehicle. He said that the Offender forced the Deceased to stand and walk and then dragged him by the hand as they were going down the stairs. The Deceased kept falling down. He saw a bruise on the Deceased’s head.

20. As the description of the injuries shows, the direct cause of the Deceased’s death were blunt force injuries. Those injuries were to the Deceased’s head, chest and abdomen and were caused by multiple forceful blunt impacts which involved significant force. I am satisfied beyond reasonable doubt that the Offender struck at least one separate blow to each of the three distinct areas of injuries on the Deceased’s body.

21. On that evening at about 7.30pm, having assaulted the Deceased, the Offender put the Deceased and her other children into her motor vehicle and drove them to her father’s home in a nearby suburb. They arrived at her father’s house about 15 minutes later. Her father observed that the Deceased’s stomach was hard and told the Offender to take him to hospital straight away. There were seven other members of the extended family at the father’s house. Several of them told the Offender to take the Deceased to hospital. The Offender did not take the advice of her father. Nor did she heed the pleas of her family members.

22. About 45 minutes after arriving at her father’s home, the Offender left two of the three children there and drove the motor vehicle, which had her sister and the Deceased in it, to pick up a friend. The friend observed that the Deceased appeared to be sleeping. The Offender purchased alcohol and arrived back at her father’s home. She carried the Deceased into the house and put him down on the lounge. The Deceased was observed to be limp and floppy. His eyes were seen to be rolling back and forth and it looked as though the Deceased was falling in and out of consciousness.

23. The Offender put the Deceased into a cold shower and tried unsuccessfully to wake him up by calling his name and splashing him with cold water. Her friend told her not to worry about the shower and to take the Deceased straight to hospital. Eventually, the Offender was persuaded to take the Deceased to hospital and drove him, together with her niece, to the Westmead Hospital.

24. The Offender arrived with the Deceased at the Westmead (Adult) Hospital at about 9.00pm. I am satisfied that this was about 2 hours after the assault occurred, and over 1 hour after the Offender was first urged by members of her family to take the Deceased to hospital.

25. At no time was any call made by the Offender to the 000 emergency number seeking the attendance of an ambulance, or any other form of assistance at all.

26. A nurse at the front desk of the Hospital observed that the Deceased was lifeless, floppy, pale in colour, both of his eyes were closed and that he was cold to touch. She observed that he was dressed in damp clothes and had wet hair. She physically took the child and ran into the Emergency Department. A doctor in the Emergency Department observed that the Deceased was pale and floppy and was showing no signs of life. Cardiopulmonary resuscitation (“CPR”) was commenced immediately.

27. After about 30 minutes of continuous CPR, followed by other appropriate tests, the Deceased was pronounced dead at 9.34pm.

28. Three doctors, including an emergency specialist at the Children’s Hospital, made observations after CPR ceased, which noted multiple abrasions and contusions to the face of the Deceased in areas at the top of the face near his hairline, beneath his right eye, around his mouth and on his chin.

29. As well, there were bruises on the Deceased’s left shoulder, right leg and right knee, and to the base of both of his thumbs.

30. Both at the hospital and later, the Offender gave a number of false, inaccurate, or incomplete explanations for her son’s injuries. At first, she told a doctor at the hospital that the Deceased had not been well for two days since the time she had found the Deceased wrestling with his brother. I note that it is agreed that his brother denied that he had been wrestling with the Deceased. The Offender said she was in another room when she heard a bang followed by crying and went out to find the Deceased holding his head. He was very quiet, but she decided that she would see if things got better by themselves.

31. On the same evening, whilst in the Emergency Department at Westmead Hospital, the Offender was spoken to by an emergency specialist who wanted to obtain a medical history of the Deceased. The Offender said that two days earlier the Deceased had been wrestling roughly with his older brother and that she walked into the room and saw the older brother standing on the Deceased’s chest. She also said that earlier that evening the Deceased had looked pale and stopped eating his ice cream. I note that this was contrary to the agreed fact that the Deceased did not eat any ice cream that evening.

32. At the hospital, the Offender was approached by a police officer and gave an account that she had been at home when she heard the Deceased crying and checked on him and saw her eldest son standing on his chest. She also told the police officer that a week earlier her older son had grabbed the Deceased around the throat and that this was a regular occurrence.

33. On the following day, the Offender spoke to police and said that three days prior to 3 August, the Deceased had fallen down a flight of stairs and had not been himself since. She said that she had closely monitored the Deceased after this incident and took him to her father’s home.

34. Finally, in an electronic recording which occurred on 8 August 2018, the Offender said that in the week leading up to the death of the Deceased, no one else had had custody of the Deceased and that he had been at home. She believed that the bruises were caused from wrestling with his brothers, or a fall from the stairs. She told police in that interview that the Deceased had fallen down a small set of stairs. She asserted that her youngest child (a 14-month old) must have pushed him down the stairs. She said it was an accident caused when her kids were playing together.

35. I have earlier set out the injuries which were the cause of death. I observe that at autopsy the Deceased was found to weigh 14kgs and to be 91cm in height. The police records indicate that at the time of her arrest, the Offender was 170‑175cm tall, that is approaching twice the height of the Deceased, and that she weighed between 120kg and 130kg i.e., about nine times the weight of the Deceased.

36. Post-mortem examinations found that the Deceased had widespread skin bruising and severe internal injuries and that the volume of blood in his abdomen was about 40% of his total volume of blood. The paediatric pathologist concluded that the autopsy findings showed evidence of non‑accidental injury which was severe in degree and protracted in nature. The experts were satisfied that there was significant delay in the presentation for medical care.

Objective Seriousness

37. Manslaughter is an offence which can cover a wide range of different circumstances, each resulting in an unlawful death. The basis of the Offender’s plea in this case was that her conduct in assaulting the Deceased constituted an unlawful and dangerous act.

38. No weapon was used, but the assault was perpetrated by the much bigger and much larger Offender upon her 2½-year-old child by hitting him. I am satisfied that the Offender hit the Deceased on a number of occasions, at least once to each of the three separate sites of blunt force trauma, and probably many more, although it is not necessary to make such a finding of fact and I do not.

39. The Offender was a large woman. The blows were delivered with significant force. They inflicted injuries of a kind more usually associated with car accidents. The Deceased was small and vulnerable. The offence was committed in the Deceased’s home and in the presence of the Offender’s eldest child, L, who watched the Offender hit the Deceased and saw the aftermath of the Deceased being dragged because he was unable to walk. The assault by the Offender on the Deceased, involving the force which it did, was one which involved considerable violence although no weapon was used. Most significantly, the offence involved a gross breach of trust by the Offender. She was the Deceased’s mother. No greater position of trust exists than that between a child and a parent. A parent is entrusted with the care and nurture of their child. The Deceased was young, vulnerable, and placed his entire trust in his mother to look after him and care for him. This trust she egregiously breached.

40. The conduct of the Offender including her failure to call for an ambulance for the Deceased, and her decision to ignore the advice of her father and members of her extended family to take the Deceased straight to hospital, significantly delaying any help being provided to the Deceased who was obviously very unwell, are matters which aggravate the seriousness of the offence.

41. To my mind there are no mitigating factors of any kind which are relevant to the assessment of the objective seriousness of the offence.

42. In my assessment, this was an objectively very serious example of a manslaughter offence, which I assess as falling well above the mid-range.

The Offender’s Subjective Circumstances

43. Little is known of the Offender’s subjective circumstances. As I have earlier said, she was 25 years old at the time of killing her child and is now 29 years of age. She was living with her partner and three children and not working at the time of the offence. The Offender did not give evidence on sentence although she wrote a letter to the Court.

44. The letter was not the subject of sworn evidence, and so I give it very little weight. The Offender did not in that letter attempt to provide an explanation of what had occurred, nor did she provide any reason as to why the events occurred. She acknowledged her fault for the event, saying that she “could have prevented it all from reaching the point it ended”. She extended a sincere apology to her children, MA and her family for their suffering. She apologised to the Court “…for the mistake I could have prevented”. I reject any suggestion that the killing of her child by her physically assaulting him can be regarded as “a mistake”.

45. The Offender was examined by Dr Stephen Allnutt, an expert psychiatrist. The extensive report of Dr Allnutt was put before the Court but the account of events relating to the offending, which the Offender gave him and which he recorded at some length, was not included in the tender of Dr Allnutt’s report.

46. Dr Allnutt concluded that there was no family history of mental illness, nor at the time of the event was there any history on the part of the Offender of significant substance abuse. He was unable to diagnose any psychiatric disorder as being in existence at the time of the offence, but he did note that at the time of his examination, the Offender was manifesting symptoms consistent with a major depressive episode which was beginning to ameliorate. He concluded that the significant stressors for that depressive episode related to incarceration, the fact that the Offender was facing conviction of a serious charge of manslaughter, that she was facing sentencing, separation from her children, separation from MA, and being responsible for the death of her own child.

43. He noted that the Offender accepted that she needed psychiatric and mental health treatment and that she had, since being incarcerated, attempted to pursue some psychiatric treatment having been prescribed anti‑depressant medication after she came into custody. He said that the Offender appeared motivated to rehabilitate and his opinion is that her prospects for rehabilitation are positive. Dr Allnutt thought that the Offender may need regular consultations over a period of 6 to 12 months, but this would depend on her clinical condition.

44. Dr Allnutt’s report does not provide any reason relating to the Offender’s mental health which could explain or in any way account for the offence or for the Offender’s conduct. To the extent that he describes the onset of psychiatric symptoms reactive to the events which occurred and being in custody, which have resulted in a diagnosis of major depressive condition, I take that condition into account on the basis that it will make the Offender’s time in custody more onerous than for others who do not suffer from such a psychiatric condition.

45. Despite Dr Allnutt’s report, I am unable to make any finding as to the Offender’s likelihood of reoffending or prospects of rehabilitation. I do not consider the report in the absence of any underlying facts, and the absence of any evidence to support the factual basis of the doctor’s expert opinion, can be given any weight at all. I do not have any sufficient material to enable me to reach any conclusion about the offender’s prospects of rehabilitation.

46. The Offender had some criminal history prior to this offence. That history consisted of relatively minor offences in the Children’s Court and only one minor fraud offence in her adult life. Whilst I am not able to say that the Offender has no criminal record, in my view she has no significant previous criminal record. I am, however, equally unable to conclude that she was a person of good character at the time of the offence.

47. It is not at all clear whether the Offender has any family support at all. Neither she nor MA have custody of their children, who have been the subject of foster arrangements. No information is provided as to the Offender’s ongoing conduct whilst in custody, any ongoing relationship with her family, or with MA who is in immigration detention.

48. I am unable to find that the Offender has expressed any regret at all for what has happened. Little, if any, weight can be given to her letter which, to my mind, does not involve any real acceptance of wrongdoing, nor is it an expression of regret. It is simply wrong to describe what she did as a mistake. The letter written by the Offender is not of any benefit.

49. I am satisfied that the Offender’s present custodial circumstances, the degree to which she will be treated as a pariah by other inmates, the difficulties encountered over the last few years because of the restrictions imposed to keep correctional centres free of COVID-19 and the existence of her major depressive disorder, all combine to make the Offender’s imprisonment more harsh than for other inmates.

Victim Impact Statement

54. The Court heard a Victim Impact Statement read on behalf of the Offender’s eldest child, who is now about 10 years old. That statement made it clear that the death of the Deceased, his younger brother, has caused significant harm and distress to him.

55. Pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act, I consider that it is appropriate to take this statement into account. I do so on the basis that the harmful impact on the family of the Deceased is an aspect of the harm done to the community as a whole by the Offender.

Discount

56. The Offender is entitled to discount of 5% on any sentence which I might otherwise have imposed because of the utilitarian value of the plea which she entered.

Sentencing

57. In considering the appropriate sentence to be imposed on the Offender, I commence with a reminder that the offence of manslaughter involves the unlawful taking of a human life. The killing of a person involves the violation of the sanctity of human life which is a concept at the heart of a civilised community. Punishment and general deterrence are of significance. In the Offender’s case, the purpose of punishment, having regard to her moral culpability for the offence is significant, so too is the importance of denunciation of the Offender’s conduct in the circumstances. Parents or those with the care of children must be deterred from causing harm to their children from unlawful and dangerous acts. The community regards such acts as abhorrent, as this one was, and accordingly such an act must be denounced. Ultimately, I recognise that the sentence to be imposed must be one which reflects the objective seriousness and the gravity of the offence and the moral culpability of the Offender.

58. Here, what is involved is the death of a young child at the hands of his mother. She assaulted him unlawfully using her hands or fists with considerable violence and force, ignored the obvious injuries which made it difficult for him to walk, and then delayed significantly taking him for medical assistance even though she was told to do so by her father and other members of the family. She acted in a callous way towards her son. She refused to recognise or act upon the dire condition that her assault had caused her son to be in. By the time she arrived at the hospital with him, it was too late. She gives no explanation for what occurred. There is no psychiatric diagnosis or mental health condition which would explain what occurred.

59. I am left to deal, in imposing this sentence, with a woman in her late 20s who was seemingly able to take care of her other two children without difficulty but was unable to care in the same way for the Deceased. For no apparent reason, she assaulted the Deceased in a way which caused his death. It is hard to find in the material before the Court any mitigating circumstance which would reduce the moral culpability of the Offender in any way.

60. Whilst I accept that this is the first time the Offender will be in custody, there seems to me to be no reason to make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act. In my view, the usual period of parole will be adequate to assist the Offender to reintegrate into the community on the completion of her non-parole period. There is no other sufficient reason which has not already been taken into account, to find special circumstances.

61. I have now discussed all of the facts relevant to sentencing including the relevant subjective circumstances of the Offender, and it is necessary to make a value judgment as to the appropriate sentence to be imposed for the offence.

62. This offence of manslaughter was very serious and fell above the mid-range of objective seriousness for offences of that kind. The Offender’s conduct was violent and brutal and involved a significant breach of the trust which she had as the mother of the Deceased to care for her son and to look after him.

63. I have regard to the Offender’s moral culpability, which I regard as significant. I also take into account the particular hardship being experienced by the Offender whilst incarcerated for the reasons which I have discussed.

64. I determine that the appropriate sentence for the offence, after the application of the discount, to be 14 years and 3 months imprisonment with a non-parole period of 10 years and 8 months. It is appropriate to commence the sentence on 20 February 2019 so as to reflect the period of time which the Offender has spent in custody prior to her conviction.

Offence of Serious Personal Violence

65. I am required to warn the Offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006 and the fact that that Act applies to the offence of manslaughter of which she has been convicted. At some future point in time, an application may be made that, notwithstanding the completion of her sentence, the Offender ought continue to be detained or else be subject to an Extended Supervision Order impacting upon her liberty.

Sentence

66. DF, I impose the following sentence upon you:

1. For the offence of the manslaughter of your son, I impose a sentence of imprisonment comprising a non-parole period of 10 years and 8 months with a balance of term of 3 years and 7 months to commence on 20 February 2019.

2. The first date upon which the Offender will be eligible to be released on parole is 19 October 2029.

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Decision last updated: 28 June 2022