R v Dominico Peter Turchino R v HMF

[2005] NSWSC 1214

CITATION:	R v DOMINICO PETER TURCHINO R v HMF [2005] NSWSC 1214 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 July 2004, 17 August 2004, 21 October 2004,
JUDGMENT DATE :	18 November 2005
JUDGMENT OF:	Latham J
DECISION:	Conceal a serious offence DOMINICO PETER TURCHINO - Non-parole period of nine months, the blance of the term being three months.Sentence suspended upon Turchino entering into a bond to be of good behaviour for the term of the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.; Manslaughter - HMF - Non-parole period of three years and nine months to date from 3 November 2003, expiring on 2 August 2007, the balance of the term being one year and three months expiring on 2 November 2008. The date upon which the offender is eligible for release to parole is 2 August 2007.

CATCHWORDS:	Sentence - Manslaughter of infant by mother - Criminal Negligence: Conceal Serious Offence.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act
PARTIES:	Regina, Dominico Peter Turchino,HMF
FILE NUMBER(S):	SC 2004/2879; 2004/2880
COUNSEL:	GJ Tabuteau - Crown A Barber - Turchino P Zahra SC - HMF
SOLICITORS:	S Kavanagh - Crown Galloways Solicitors - Turnchino S O'Connor - HMF

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
Of NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

18 NOVEMBER 2005

2004/2880 REGINA v HMF
2004/2879 REGINA v DOMINICO PETER TURCHINO

SENTENCE

1 HER HONOUR: HMF pleaded guilty on 6 May 2005 to one count of manslaughter. That offence carries a maximum penalty of twenty five years’ imprisonment.

2 Dominico Peter Turchino pleaded guilty on 21 June 2005 to concealing a serious indictable offence, namely maliciously inflict grievous bodily harm. That offence carries a maximum penalty of two years’ imprisonment.

3 The tragic circumstances giving rise to these offences are set out in the agreed facts, which are part of exhibit A. In 2003 the offender, HMF, and the co-offender, Dominico Peter Turchino, were in a de facto relationship. On 13 October 2003 they moved into the address at unit 10, 1-3 Therry Street, South Strathfield to live as a family unit with S, born 17 February 2003, aged eight months. S is the daughter of HMF. No father was recorded on the deceased’s birth certificate, although Mr Turchino believed that he was the biological father of the child, the victim in this matter. He actively cared for HMF during her pregnancy and for the deceased since her birth in February 2003.

4 Between 8 pm and 9 pm on Wednesday 15 October 2003 the co-offenders and the child were at their home address, having just returned from Mr Turchino’s mother’s home at 10 Therry St, South Strathfield. HMF prepared a bath for the deceased by filling a portable plastic baby bath with hot water. The bath was positioned on the kitchen bench adjacent to the sink.

5 HMF picked up the deceased and lowered her into the water. The deceased was positioned such that her head was elevated above the surface of the water; her legs were bent so that the knees remained above the surface of the water and most of her back, buttocks, genital area and rear of her head, arms and legs and the lower part of the abdomen were immersed in the water. This caused deep scald burns to the immersed areas of the child and she began screaming. A neighbour in the adjoining unit stated to police that this screaming was very loud, continuous screeching and crying of a baby and was terrifying, for a period consistent with one to one and a half hours.

6 The scalding caused extreme bright redness to the immersed areas and caused skin to shed from her body. HFM and Mr Turchino argued about what had happened, about the colour of the deceased’s skin and the fact that an amount of the deceased’s skin was present in the bath water. f placed the deceased on a baby change table and dried the deceased using a bath towel, whereupon further amounts of the skin were pealing off the child’s body. HMF proceeded to rub the deceased’s skin with an amount of cream and shampoo. At no time did either she or Mr Turchino telephone for any emergency services or any other persons to assist.

7 About midnight HMF placed the child in her pram and left the unit with the pram. Mr Turchino remained at the unit.

8 At about 1.20 am on 16 October 2003 a witness saw HMF with the pram at the intersection of Homebush Road and Liverpool Road, South Strathfield. The witness and HMF had a short conversation, during which HMF asked the witness for a variety of drugs. The witness continued to observe HMF from the window of his apartment and saw her attempting to flag down cars travelling along Liverpool Road.

9 A motor vehicle stopped and HMF negotiated with the driver a price to perform a sex act upon him. The driver of the vehicle and HMF entered the car park at the rear of the hotel located on the corner of Homebush and Liverpool Road where the witness lost sight of them. At this time HMF had the pram with her. Neither the witness nor the driver of the vehicle saw or heard the deceased at this time.

10 A short time later the witness saw HMF with the pram on the opposite side of the intersection. At this time she was banging loudly on the front window of a pharmacy. The witness and HMF had a verbal argument during which time both of them telephoned Triple O and requested police. HMF used the name “Helen McGovern” when speaking to the Triple O operator. She then left the area.

11 About 3.30 am police responded to a call that a woman was acting suspiciously in Therry Street, South Strathfield. On arrival police officers found HMF in Mooney Street, which is adjacent to Therry Street. They had a short conversation with her in which she stated she was “looking for baby stuff”. Police noticed a wooden handled meat cleaver in the carriage of the pram and seized this item. As HMF moved from the rear of the pram to the front, the pram tipped backwards. HMF righted the pram onto its wheels which allowed the police officers to see the deceased child under a blanket in the pram. Police touched the deceased’s face and noticed that the skin was very cold.

12 Police called for an ambulance to attend the scene. The ambulance arrived a short time later. However, when the ambulance officers attempted to examine the child, HMF became very aggressive, assaulting the two police officers. She was placed under arrest, cautioned and taken to Auburn Police Station. The deceased child was transported to Royal Prince Alfred Hospital and life was pronounced extinct and a death certificate issued.

13 At 6 am police spoke with Mr Turchino at 10/1-3 Therry Street, South Strathfield. He accompanied police back to Auburn Police Station. Detention warrants were then issued for both f and Mr Turchino.

14 HMF participated in an electronically recorded interview, in the course of which she told police that when she filled the deceased’s bath up, her whole skin just went bright red, that this was very very unusual, that the deceased was screaming, that pieces of skin were coming off which she let fall into the bath. HMF said her reaction was it was a burn and that Mr Turchino told her that she had scalded or burnt the deceased.

15 As to why she did not call the police or the ambulance, HMF said that Dominico (that is Mr Turchino) wanted to ring an ambulance straight away but she had said no. If the deceased got worse then she would take her to hospital.

16 A search warrant was applied for and granted for the premises at 10/1-3 Therry Street, South Strathfield. That warrant was executed on 16 October 2003 at 3.30 in the afternoon. Once entry was gained, the interior of the premises were established as a crime scene.

17 During the subsequent examination of the premises a number of forensic exhibits were obtained. Amongst these were a number of samples which were human skin, being the deceased’s, from the plastic baby bath, the kitchen sink and the drain of the main bath in the bathroom. A qualified plumber tested the temperature of the hot water using an approved and calibrated device. The temperature of the hot water from the kitchen sink tap was recorded at 67 degrees Celsius.

18 A post-mortem was conducted on the deceased child at the Glebe Morgue. In the report the recorded direct cause of death was burns. The findings were scald type burns involving most of the back of the trunk, upper and lower limbs, right side of the face and neck incorporating about seventy five percent of the body surface consistent with immersion in hot fluid and that the deceased died of severe scalding which led to the failure of her internal organs.

19 Dr Hugh Martin, a paediatric surgeon and burns specialist, also examined the deceased. He reported that the extent and depth of the burns were enough to be fatal; that the burns could be sustained by contact with water at over 60 degrees Celsius for more than a few seconds and that the resulting fluid loss from the blood could be fatal within a few hours. He concluded that due to sharp demarcation of the burn marks and the lack of splash evidence, the deceased had been deliberately immersed in the water as opposed to her falling in or splashing about in the bath.

20 At 8.15 am on 3 November 2003 HMF was arrested, along with Mr Turchino, outside the premises in South Strathfield. HMF has remained in custody since that time. Mr Turchino was released to bail after spending eleven days in custody.

21 The principal issue falling for determination by the court for the purposes of sentencing HMF is whether I am satisfied beyond reasonable doubt that deliberate immersion of the child in hot water was an unlawful and dangerous act or whether, absent that finding, it amounted to an act of criminal negligence.

22 There is no dispute that the act of immersion was deliberate. There is, however, a critical distinction to be observed between deliberate immersion in ignorance of the possibility that the temperature of the water would cause really serious injury to the child and deliberate immersion in the knowledge or belief that the child may be seriously injured by the infliction of scalding burns to the skin. That distinction merely observes that bathing a child per se is not an unlawful act. What renders it unlawful and relevantly dangerous is an appreciation by a reasonable person in HMF’s position that there was a risk of injury to the child. An appreciation of that risk assumes awareness of the temperature of the water.

23 The manslaughter of a child by gross negligence, by way of contrast, does not require a subjective appreciation on HMF’s part that immersing the child in the water was unsafe (see R v Lavender [2005] HCA 37).

24 A significant body of evidence was put before the Court to assist in the resolution of this issue. The following summary of that evidence may be conveniently divided into three chronological stages. Firstly, the Department of Community Services’ supervision of HMF between 24 February 2003 and 1 July 2003. Secondly, HMF’s treatment of the child in the days immediately preceding 15 October 2003 and up until the child’s bath at about 9 pm that day. Thirdly, HMF’s behaviour after leaving the unit in Therry Street up to and including the morning of 16 October 2003.

25 In addition to these categories of evidence, a number of psychiatric examinations of HMF in the days and weeks following her arrest bear upon her state of mind on 15 October 2003 and her capacity to function in a rational manner.

26 Dealing firstly with the supervision by the Department of Community Services, the department’s records reveal that HMF was assigned a case worker seven days after the child’s birth owing to a previous notification to the department relating to HMF’s first child, who was no longer in her care. The case worker’s file notes on the whole expressed no concerns with HMF’s treatment of the child. It is recorded that HMF kept her appointments with paediatric registrars and Early Childhood Centres throughout the period of DOCS’s supervision. The notes include references to “appropriate interaction between mother and child, confidence in coping with baby’s needs, appropriate development of the baby and the baby’s clean, well cared for condition”. An assessment report of 11 September 2003 included the following:

“HMF had all the appropriate baby equipment needed to care for S and was attentive and appropriate with her during her home visits. She had a clear routine organised for S and appeared aware of her needs. HMF spoke of wanting to do the best she could for her daughter and said that she was so important to her that she would not jeopardise losing her by going back to her old lifestyle. HMF has engaged with services and demonstrates that she has the capability to care appropriately for S. HMF demonstrated insight into the needs for her own daughter and that is evident in her interaction and engagement with her daughter and the services involved.”

27 Turning next to HMF’s treatment of the child proximate to 15 October 2003, in the weeks before 15 October 2003 a friend of HMF’s, Joanne Dineen, had visited the home and observed HMF and the child on various shopping trips. Ms Dineen’s statement indicates that the unit was untidy, dirty and chaotic and that HMF did not appear to be coping with the baby’s fretful behaviour. The child was often crying and occasionally bruised in the facial region. Ms Dineen stated, “Sometimes HMF was really good with the baby and treated her well, looking like she loved the baby. This only looked like when the baby wasn’t crying...”.

28 On the morning of 15 October 2003 Ms Dineen saw HMF and the baby. The child was clean and happy. At 3 pm that day HMF appeared to Ms Dineen to be under the influence of drugs and that impression was reinforced at about 7 to 7.30 pm when Ms Dineen saw HMF at Burwood Plaza Woolworths Store. HMF appeared upset and distressed. At about that time HMF had had an argument with Woolworths’ employees over a request by the staff to examine the pram. The baby appeared to be sleeping.

29 Following this incident HMF went to Mr Turchino’s mother’s home where she had dinner. The child was observed to be asleep and was still asleep when HMF and Mr Turchino left the premises.

30 At about 9 to 9.30 pm the child’s screaming and crying was heard by a number of neighbours. One of these neighbours told police that she heard a female voice yelling loudly, “I fucking know what I’m doing. I’ve done this before”. A male voice was heard to say, “Calm down”. Later that evening the same neighbour heard a hysterical female voice, louder than before.

31 Before passing to consider the events following HMF’s departure from the unit it is pertinent to note that there is no compelling objective evidence to this point which is capable of proving to the requisite standard that HMF was intentionally abusing the child in any way. It would appear that after the Department of Community Services terminated its supervision in early July HMF was unable to maintain the same standard of care for the child unassisted by regular intervention. Ms Dineen’s observation of the condition of the unit and the child’s bruises are consistent with less than satisfactory hygienic standards and minor injuries sustained by knocks and perhaps rough handling. By October the child was eight months old and more than likely rolling over and sitting up. Nothing in the evidence thus far demonstrates intentional infliction of harm.

32 Turning then to HMF’s behaviour after leaving the unit, I do not propose to repeat the events already described in the statement of facts. However some aspects of those events provide insight into HMF’s state of mind.

33 It is clear that HMF was intent upon obtaining some sort of drug for herself in the hours leading up to her conversation with police. Accepting that she was aware that the baby had been scalded at the time of the bathing and thereafter appeared to be sleeping - that is, according to HMF - and that Mr Turchino was available to look after the child, HMF’s departure from the unit, her search for drugs and her attempts at prostitution, all with the child in the pram, are not consistent with an appreciation on HMF’s part of the gravity of the child’s condition. That impression is reinforced by the conversation between HMF and the Triple O operator wherein HMF speaks of her daughter in the pram and the fact that she is on her way home from the child’s grandmother’s house.

34 The particulars of the conversation between HMF and the police at approximately 4 am on 16 October 2003 are of further relevance. When one of the police officers who were called to Therry Street asked HMF if he could look at the baby, having already ascertained that the baby was cold to the touch, HMF replied, “No, she is sleeping. I don’t want to wake her. Leave her alone.” When the ambulance arrived, despite HMF’s refusal to hand over the baby to male officers, HMF immediately gave the child to a female ambulance officer.

35 At Auburn Police Station at about 5 to 5.30 am HMF had the following conversation with police:

“I told them that I gave my baby a bath this morning and she got red dye all over her. I don’t know how she got the red dye on her. I tried to wash it off but it wouldn’t come off. As soon as my daughter turns five I am going to kill myself. It is my flesh and blood. I was going to call the ambulance. As soon as she turns five, no more daddy, no more mummy. I just want to die. It won’t be long. I don’t know where my daughter is. I don’t care. I am going to see her. They don’t know how to look after my child.”

36 Later that day HMF spoke with Detective Evans at Auburn Police Station.

She said: “I need to speak with Dominico.” I said - that is referring to Detective Evans - “What has happened?” HMF said, “I was getting harassed by some guys in the shop above. I rang the cops and they just arrested me at the front of my house. They took S from me.”

Detective Evans said, “Do you realise S is dead?”

HMF said, “What do you mean she is dead? S is not dead. She was fine till the police turned up.”

Detective Evans said, “You are under the arrest for the murder of your daughter, S.”

HMF said, “S isn’t dead. No, she isn’t dead. I can’t believe she is dead. She was fine until the cops took her from me.”

Detective Evans said, “Anything you say or do I may record and this may later be used in evidence at court. Do you understand that?”

HMF said, “Yes. Do you think we can bring her back?”

Detective Evans said, “No, HMF, unfortunately S is dead.”

37 Following the record of interview HMF was observed behaving in an irrational and aggressive manner.

38 In all the circumstances outlined above there is, in my view, insufficient evidence to support a finding beyond reasonable doubt that HMF intended to harm the child at the time she immersed the child in the water. Every statement made by HMF points in the opposite direction. She maintained to police that the child was sleeping and that there was nothing wrong. She expressed disbelief that the child was dead and behaved consistently with her stated ignorance of the child’s true condition. The Crown has never suggested that any part of HMF’s behaviour was feigned or calculated to deceive police. Nor could such a submission be maintained in the light of the psychiatric evidence before the court.

39 Before passing to that psychiatric evidence, some features of HMF’s background and history should be explored.

40 HMF was largely brought up by her mother from the age of seven. She left school after year nine and worked in a number of unskilled jobs. She reported experimentation with most drugs including cannabis, heroin, amphetamines and cocaine throughout her teenage years and adult life. She has been on the methadone program for a number of years and was reducing her dose at the time of the child’s birth. She has undertaken drug and alcohol rehabilitation and detoxification programs at various times.

41 Her documented history includes the following. On 25 November 2000 she was noted to be injecting a clear coloured liquid into the back of her hand by police, which was thought to have been heroin. There were a number of other incidents, dating back to 1995, of police having found her with various drugs and drug paraphernalia in her possession. She was admitted on 26 February to 27 February 2001 at Rozelle with a diagnosis of speed-induced psychosis.

42 There was an admission to Royal Prince Alfred Hospital between 8 March and 12 March 2001. A diagnosis of drug-induced psychosis was made. She complained of hearing voices in her head. She had used intravenous heroin and speed prior to this presentation.

43 On 15 May 2001 in the course of an admission note a diagnosis of drug-induced psychosis with possible schizophreniform disorder appears. She gave a history of having used opiates, amphetamines, cocaine, cannabis and benzodiazepines.

44 In a letter of 20 August 2001 Dr Morris, her boarding house supervisor, noted a change in her behaviour from the night before in that she presented as perplexed, unco-operative and thought disordered. She was seen to be responding to auditory hallucinations. She behaved in an aggressive manner. The impression was that she was suffering from a psychosis.

45 A discharge summary from Rozelle Hospital relating to an admission between 20 and 29 August 2001 refers to a diagnosis of psychosis secondary to substance abuse due to intravenous amphetamines and cannabis. A possible diagnosis of schizophrenia and schizophreniform disorder was also considered. She presented as acutely psychotic with a twelve hour history of deterioration in her mental state. She was perplexed, pre-occupied, unkempt, dishevelled and hypervigilant. She manifested thought disorder. She was treated with various drugs.

46 On 2 August 2002 she was found by police to have track marks on the neck and she had syringes and alcohol wipes in her possession. On 29 October 2002 she told police that she had smoked cannabis earlier that day. On 9 November 2002 she was found to be in a psychotic state, calling herself the devil and Jesus and eating pages from the Bible. She was conveyed to Rozelle Hospital.

47 There was another admission on 9 December to 11 December 2002. A diagnosis of drug-induced psychosis with amphetamine intoxication was made. She was found in her flat at that particular time naked, talking about devils and had used intravenous amphetamines earlier that day.

48 Deborah Furniss, HMF’s case manager as at February 2003, noted that between 4 March and 15 October 2003 she had seen HMF on nine separate occasions. On 24 June 2003 Ms Furniss discussed with HMF that her two weekly urine bloods had come back testing positive for traces of amphetamine and morphine. On 15 July 2003 she again had dirty urine with cannabis.

49 Following her arrest, HMF was admitted to Rozelle Hospital on 17 October 2003, having been transferred from Cumberland Hospital. At Rozelle Hospital it was felt that she had suffered a drug-induced psychotic episode. Dr Barrett reviewed HMF on two occasions, namely 17 and 20 October 2003, and reported that there were no psychotic symptoms. That finding is supported by Dr Nick Burns, who also noted that other colleagues found no evidence of a psychotic disorder on admission to Rozelle. Dr Burns was of the view that HMF had suffered a brief psychotic episode as a result of intoxication with amphetamines and other drugs of abuse. He was also of the view that the psychotic episode had resolved rapidly.

50 In a discharge summary noting her admission to Rozelle Hospital between 17 and 21 October 2003, Dr Burns made note that on arrival at Cumberland Hospital on about 16 October 2003 HMF was found to be disinhibited, dishevelled, agitated and threatening. Her speech was pressured. She was irritable in her affect. She displayed inappropriate laughter. There was circumstantiality of thought forms. There were no clear delusional feelings present or evidence of perceptual disturbance but her insight and judgment were felt to be impaired. She reported that her memory for events was vague and had a dream-like quality. She denied any homicidal intent to her daughter. She admitted to smoking cannabis on the day of her child’s death. However, she denied use of any other illicit substances in the week prior to her child’s death. Urine drug screens indicated she had recently used amphetamines and benzodiazepines. HMF surmised she had used these drugs on 15 October 2003.

51 Having regard to the ingestion of amphetamines on 15 October 2003, most probably in the course of that day, Dr Olav Nielssen expressed the opinion that (and I quote from exhibit E):

“Any person with HMF’s history, particularly a history of previous psychotic episodes after taking amphetamine, a single large dose of amphetamine, could be expected to produce psychotic symptoms in the period after taking amphetamines. HMF’s propensity to develop psychosis was probably increased by recent abuse of cannabis, a drug that is known to induce psychotic symptoms in susceptible individuals.

The presence of benzodiazepines may also have affected HMF’s behaviour, as the drugs are known to have a disinhibiting effect, not unlike that of intoxication of alcohol although without the effect on motor co-ordination observed with alcohol intoxication. Intoxication with benzodiazepines often results in impairment of memory for recent events, particular after a period of sleep.

It is not possible to say exactly when her psychotic symptoms started. However, accounts of her behaviour earlier on the day of 15 October do not suggest the presence of psychosis.

HMF did not refer to the presence of symptoms of psychotic illness during the record of interview conducted from 8.46 am to 2 pm, with several interruptions, on 16 October 2003. Her answers were normal in form and indicated that she understood the questions put to her. The signs of psychosis observed at the time of her assessment at Cumberland Hospital were irrational anger and disorganised speech and she was observed talking to herself as though responding to hallucination of voices, although she never experienced auditory hallucinations .”

52 Dr Nielssen’s view was that HMF did not develop psychotic symptoms until after her record of interview, although she was intoxicated by a combination of drugs at the time of the child’s death. By way of contrast, Dr Allnutt’s opinion was (and I quote from exhibit 5):

“ ... it cannot be concluded with reasonable medical certainty that at the time of the alleged offence she was not experiencing symptoms of psychosis. She has a prior history of mental illness with multiple admissions manifesting psychotic symptoms with the use of amphetamines; her behaviour at the material time of the alleged offending suggests a significant disturbance in her capacity for rational interpretation of her environment; she manifested the psychotic symptoms to clinicians when professionals began to enquire as to the presence or absence very soon after the alleged offence and that persisted for a number of months after the offending.

A more reasonable conclusion based on the evidence is that she had an underlying vulnerability to psychosis that preceded the alleged offending and that was triggered by her substance abuse prior to the alleged offending; that at the time of the alleged offending she was intoxicated but had also lost capacity for rational interpretation of her environment and was at least entering a psychotic mental state to the extent that her judgment was impaired more severely than if she was just intoxicated.”

53 Of these two opinions, I prefer that of Dr Allnutt. Given HMF’s history of psychotic episodes I would not be confident that she was not experiencing psychotic symptoms at the time of the events causing the child’s death. Perhaps the question is one of degree, since even Dr Neilssen acknowledges that it is not possible to determine exactly when the psychotic symptoms arose.

54 One thing is clear. HMF’s judgment was significantly impaired at approximately 9 pm on 15 October 2003, although she lacked a degree of substantial impairment which would otherwise have been required to establish a defence of diminished responsibility had the Crown proceeded with the charge of murder. I accept Mr Zahra’s submission that the child may well have been lowered into the bath without any awareness on HMF’s part that the water was at an unsafe temperature.

55 I propose therefore to sentence HMF on the basis of gross criminal negligence, that is, an act of HMF in circumstances where she had a duty of care towards the child, that act falling so far short of acceptable standards of care that it is properly characterised as wicked and deserving of punishment.

56 The nature of that punishment varies enormously in the authorities to which I have had regard. Ultimately each case depends on its own facts. The death of a defenceless child generally calls for the imposition of a custodial penalty and Mr Zahra has not suggested otherwise.

57 HMF’s condition appears to have stabilised with treatment. However, that can only be confidently maintained if she refrains from illicit drug use. Regrettably, given her long stand drug abuse I am not confident of her abstention in the future.

58 She is presently thirty years of age. It is theoretically possible that she will continue to bear children and that future offspring will be at risk under her care without intensive supervision. Her relationship with Mr Turchino is over. I accept that she is genuinely remorseful and that she is willing to abide by future treatment directives.

59 I take into account her plea of guilty at the earliest available opportunity and I have applied the maximum discount to the sentence I would otherwise impose. She has convictions for property offences which have resulted in short periods of imprisonment imposed by various local courts. These factors to which I have already referred are largely reflected in the terms of s 21A of the Crimes (Sentencing Procedure) Act 1999. I decline to find special circumstances.

60 Taking all these matters into account I propose to sentence as follows: on the offence of manslaughter to which you have pleaded guilty, you are convicted. I impose a non-parole period of three years and nine months to date from 3 November 2003, expiring on 2 August 2007, the balance of the term being one year and three months expiring on 2 November 2008. The date upon which you are eligible for release to parole is 2 August 2007.

61 Turning to the offender Mr Turchino, Mr Turchino’s criminality lies in the most appalling disregard of the child’s obvious distress, pain and acute injury. One only has to have regard to Mr Turchino’s record of interview on 16 November 2003:

“HMF started bathing S. The bath would have been 9.30, 10.00 (pm) maybe. Because there was so much tension between both of us, HMF bathed S on her own. I was putting the bed together and drilling holes and screwing things together, the bed for me and HMF. I could hear the baby screaming, like when you might jamb your finger in the door. She was screaming for probably a good half hour, forty minutes, an hour. It went on and on for about an hour. The baby was crying more than normal. The crying was prolonged a lot, and the crying was more severe than usual because that red dye was on her and I thought this is too much, she has not stopped crying. (I heard) all the screaming from the kitchen. I didn’t know what was happening there, until the screaming got over the top of me. I started feeling it. This is more than a scream. With the screaming I thought the baby was getting burnt.

When I heard the crying I wanted to know what was the problem. I was about ten metres in distance from where I was putting the bed together to where f was bathing S. So I went to the kitchen and said, “What’s the problem?” and then I said, “What’s all that red on her?” I saw the colour S was - red. I said, “What’s happened there, how come she’s all red? Is she burnt?” or something like that, I started panicking.

I thought she was burnt, S. It looked like she was burnt. The screaming of the baby was freaking me out because I thought it was burnt. I thought it was burnt, honest to God, it looked like it was burnt, man. When I first look at the baby it looked like burn marks. That’s what I thought, it looked like burn marks. I thought she was burnt, by the redness. I don’t know if you’ve ever seen red raw skin burnt in the sun. I seen the red. I thought it was burnt and I said, “That’s why she is crying more than ever, because she is burnt.” I thought she was burnt, honest to God.

When she bathed the baby I said, “What’s up with the back - it’s all red?” and then she’s freaked out. I said, “When did this happen?” and she goes, “During the day”. I seen the red on her. That’s when HMF has picked the baby up and went into here. That’s when I freaked out. I said something along the lines, “The baby’s burnt” or “You’ve burnt the baby”, because of the screaming, it got too intense. She said, “I’m an unfit mother”.

When I said I was going to ring up the ambulance, she flipped out. HMF panicked when I found out there was all the dye on her.

The argument was over me ringing up the Police or the Ambulance. That really triggered her off, because I didn’t believe what she was saying. She was telling me that it was that stuff all the time and I didn’t believe her, plus the baby was screaming, and I had to see it for myself. When we were arguing about this red substance in the water, it did appear that she was under the influence of drugs. I said, “Look HMF, you are not in a frame of mind.”

...what stopped me ringing that Ambulance at the time that I thought she was burnt was that I didn’t want any trouble with welfare on her back.

I wanted to ring the Police and the Ambulance up and she goes, “You ring them up and we’re finished”. I said, “Well if it’s an accident, it’s an accident, let’s get S fixed. She would have went to hospital.”

62 It is difficult to comprehend Mr Turchino’s concern about the intervention of the Department of Community Services and/or the police over and above his concern for the welfare of the child, especially one he considered to be his own. According to a report by Ms Barrier (exhibit 2), Mr Turchino functions in the sound average range. He is forty two years of age, the product of a close and supportive family. He has always enjoyed material comfort, has undertaken educational training as a panel beater and has been productively employed in that trade. He has no health or substance abuse issues. He has had one prior relationship and has a daughter from that relationship. He has no relevant prior criminal history.

63 His plea of guilty to an alternative count came shortly before the matter was fixed for trial. I have determined a discount of fifteen percent as appropriate to the circumstances of the case.

64 I accept Mr Turchino is deeply distressed about the child’s death and about his role in these sorry events. His failure to notify the authorities or to seek assistance as soon as he realised that the child had been scalded is simply inexplicable. However, he has already spent over a week in strict protection in custody and has since abided by his bail conditions.

65 But for the period of time he has spent in custody I would impose a further full time custodial sentence in order to reflect the principles of retribution and denunciation. In all the circumstances, however, I am of the view that the custodial sentence which is otherwise required may be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999.

66 On the offence of conceal a serious offence, to which you have pleaded guilty, you are convicted. I impose a non-parole period of nine months, the balance of the term being three months. I suspend that sentence on you entering into a bond to be of good behaviour for the term of the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

67 I make it clear, before the members of the press depart, according to the terms of the Children (Criminal Proceedings) Act there is a prohibition on the publication of the name of the child, even though the child is deceased. That is a mandatory order. It is not one that I impose. As a result of that, my inclination is to prevent publication of the name of HMF because publication of her name will inevitably identify the child, so for more abundant caution if you are to publish any names, please refer to the offender as HMF and then that will abide by the terms of the order.

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