R v Eriksson

[2001] NSWSC 781

CITATION:	Regina v Leanne Charmaine Eriksson [2001] NSWSC 781
FILE NUMBER(S):	SC 70204/01
HEARING DATE(S):	20 August, 2001; 22 August, 2001; 29 August, 2001
JUDGMENT DATE:	7 September 2001
PARTIES :	Regina Leanne Charmaine Eriksson
JUDGMENT OF:	Ireland AJ at 1

COUNSEL :	Mr T Hoyle, SC - Crown Mr J Stratton - Offender
SOLICITORS:	S E O'Connor - Crown Brenda Duchen - Offender
CATCHWORDS:	Criminal law - Sentencing - Manslaughter by criminal negligence by mother of her 2 year old child - failure to seek medical treatment - failure to separate from non-parental de facto she being aware of maltreatment of victim by him - Plea of guilty - assistance to authorities - undertaking to give evidence against co-accused (charged with murder of child) - Crimes (Sentencing Procedure) Act 1999 - s 44(2) Special circumstances: offender 24 years of age suffering from incurable, progressive, congenital retinal dystrophy, close to legal blindness, will be blind within decade, sentence to be served in strict protection.
LEGISLATION CITED:	Crimes (Sentencing Procedure) At 1999 - s 44(2) (Special Circumstances)
CASES CITED:	R v Thomas & Houlton (NSW CCA 309 17.8.2000) R v Blacklidge (NSW CCA 12.12.1995) R v Dodd (1991) 57 A Crim R 349 R v Hill (1981) 3 A Crim R 397 at 402 R v Cartwright (1989) 17 NSWLR 243
DECISION:	Sentenced to imprisonment for 3 years deemed to have commenced on 20 August 2000 and expiring on 19 August 2003. Non-parole period of 18 months deemed to have commenced on 20 August 2000 and expiring on 19 February 2002 on which date direct be released to parole. Further direct that in addition to the standard conditions imposed by the regulations governing parole, undertake such parenting and personal development programs as Probation and Parole Service deems appropriate.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

IRELAND AJ

Friday, 7 September, 2001

70204/01 - REGINA v Leanne Charmaine ERIKSSON

SENTENCE

1    HIS HONOUR: On 1 June 2001 the offender, Leanne Charmaine Eriksson, was arraigned on a charge that she, together with the co-accused, Paul Geoffrey Hill, on 27 April 2000 at Westmead murdered Tristen Michael Allen Lane, the deceased. To this charge pleas of not guilty were entered by both accused.

2    On 20 August 2001 the offender, Leanne Eriksson, was re-arraigned on a charge of manslaughter of the deceased, who was her son. To that charge the offender pleaded guilty. The Crown accepted that plea in full discharge of the indictment.

3    The basis upon which the plea of guilty to manslaughter was accepted, was that of manslaughter by criminal negligence on the part of the offender, in failing to obtain medical treatment for the deceased who had suffered injury and in failing to remove the deceased from the danger of injury by separating from the co-accused with whom she was in a defacto relationship.

4 It is agreed as between the parties that the first opportunity which the offender had to plead guilty to the charge of manslaughter was shortly prior to 20 August 2001 and that accordingly, for present purposes, hers is an early plea; R v Thomson and Houlton (2000) NSWCCA 309 (17.8.2000). It is further agreed as between the parties that the sentencing of the offender for manslaughter, by criminal negligence, should proceed upon the basis of certain agreed facts which may be summarised as follows.

5    Tristen Michael Allen Lane, the deceased, was born to the offender and Michael Allen Lane at King George V Hospital, Sydney on 1 March 1998.

6    He was two years and two months old at time of death. A few months after Tristen’s birth, the relationship between the offender and Michael Lane ended and they separated. At that time they also had another child, Joshua Lane, born 29 August 1995.

7    Following separation from Michael Lane, the offender maintained custody of the two children residing with them at various addresses including the home of her grandparents at Blue Haven on the Central Coast.

8    In February 2000 when the offender and her two children were residing at a guesthouse at 101 Queen Street, Ashfield, a relationship developed between the offender and the co-accused, Paul Geoffrey Hill, who at that time, resided with his sister, Amanda Hill, in a large block of residential units at Golden Grove Street, Darlington. The offender’s two half sisters, Julia and Shonna Parker and their father also resided in that complex of units.

9    At about that time Michael Lane took custody of the child Joshua. The co-accused Paul Hill moved into Room 19, 101 Queen Street, Ashfield where he resided with the offender and her son Tristen. A number of residents of those premises, a boarding house, from time to time overheard abusive language used by Paul Hill towards Tristen and heard noises consistent with the child being slapped, followed by Tristen crying.

10    On an occasion, about 1 April 2000, the offender’s half sisters Julia and Shonna Parker, who were acting as baby-sitters for Tristen, whilst bathing him, observed bruising to his body and in particular his head. When questioned about who had hurt him the child said “Paul, Paul”.

11    On about Friday, 14 April 2000 the offender, Paul Hill and Tristen moved in with Paul Hill’s sister Amanda to unit 50/11 Golden Grove Street, Darlington. At those premises on that day, an incident occurred in which Tristen suffered an injury. This incident was described by Paul Hill, to the offender, in the following terms:

“I found him (Tristen) down the bottom of the stairs. When I picked him up I heard something crack.”

12    On Saturday, 15 April 2000 Tristen was taken to Royal Prince Alfred Hospital where he was diagnosed as having sustained a spiral fracture of the left tibia (lower leg). No other injuries were detected at that time.

13    On Tuesday, 18 April 2000 the offender left Tristen in the care of Paul Hill for a period of some forty five minutes while she went to the nearby shops. On her return she inquired as to how Tristen was and received, inter alia, the reply “I done something”. Upon further inquiry, the co-accused said “I couldn’t handle him crying. I threw him onto the corner of the lounge and he hit his head”.

14    The recounting of events in the material tendered makes it plain beyond doubt that Tristen’s condition deteriorated thereafter. By Wednesday, 19 April he was speaking very little and regurgitating such food as he was able to eat.

15    The offender said to Paul Hill that she wanted to take Tristen to the hospital. He told her that she would be blamed for Tristen’s condition and that the authorities would probably take the child from her and she would never see him again. The offender gave evidence that she was in fear of the consequences of taking Tristen to hospital and that for this reason she refrained from doing so.

16    On Thursday, 20 April 2000 the day appointed for Tristen to see a specialist orthopaedic surgeon at Royal Prince Alfred Hospital, with regard to his fractured tibia, he was taken instead to the Royal Easter Show. On that occasion Tristen was observed by family members, who were also present, to be in a very poor state of health. He rejected food and was suffering from loss of mobility. Tristen’s condition did not improve over the Friday and Saturday and on Sunday morning, 23 April, he began fitting. He was placed in the bath and attempts were made by Paul Hill to give him cardio-pulmonary resuscitation. An ambulance was summoned by the offender and at about 10.50 a.m. Tristen was taken to Royal Prince Alfred Hospital.

17    The offender, when spoken to by medical staff at Royal Prince Alfred Hospital said that Tristen’s injuries were caused by him falling down the stairs. Later that day Tristen was transferred to the New Children’s Hospital at Westmead. On 27 April a decision was taken to terminate operation of the life support systems.

18    The offender at that time provided various explanations for the injuries sustained by Tristen. They included: the incident on 14 April 2000 when Tristen was said by Paul Hill to have fallen down the stairs at 50/11 Golden Grove Street; an incident on about 16 April when Tristen is said to have fallen against a coffee table in the loungeroom; an incident on the morning of 23 April when Tristen was being placed in the bath and was said to have struck the back of his head on the bottom of the bath.

19    Those explanations, which are not consistent with the injuries sustained, were given by the offender at a time when she was concerned to protect Paul Hill and her relationship with him and to abide by his strong exhortations to her to distance him from contact with Tristen or of ever being left alone with Tristen in the event that she was questioned by persons in positions of authority. Her position changed when she became aware of the extent and nature of Tristen’s injuries, which were established on admission to hospital and at post mortem, as well as the realisation that Tristen’s injuries were inconsistent with events previously described to her by Paul Hill, together with admissions by him and with her own observations.

20    At post mortem, in addition to the fractured tibia, there were established fractures to the right humerus above the elbow and to the right seventh and eighth ribs, as well as the left scapula and clavicle. A number of abrasions, lesions and bruises were observed to the head, chest and limbs, as well as internal abdominal haemorrhaging. The direct cause of death was a subdural brain haemorrhage.

21    Dr Neil Langlois, the pathologist who carried out the post mortem examination, expressed the opinion that the bone fractures would have occurred on or proximate to 14 April 2000 when the left tibial fracture occurred. However, no other injuries were noted on examination of Tristen on admission to Royal Prince Alfred Hospital on 15 April when the tibial fracture was identified and a cast applied to his lower left leg. The fatal subdural haematoma may have resulted from two separate traumas or may have been the result of a re-bleed of a single traumatic incident which had caused a subdural haemorrhage.

22    The multiple injuries, including the fatal head injury or injuries, were inflicted over a period of ten to fourteen days prior to death. Their impact upon Tristen was such as to make it plain, during that period, to relatives and friends of the offender and to the offender herself that the child was in urgent need of medical treatment which was not afforded to him until far too late.

23    I am satisfied that none of the injuries sustained by the deceased was inflicted by the offender, who nevertheless must have been aware of their infliction and of the duty she owed to her child Tristen to seek urgent medical assistance and care.

The subjective considerations

24    Subjectively, the offender who is aged 24 years, was aged 23 at the time of these events. She was virtually abandoned by her natural parents as an infant and was brought up by her paternal grandparents, having no more than sporadic contact with her mother and apparently little contact with her natural father until her mid teens when she resided with him for some months. The helpful pre-sentence report furnished by Ms Patricia Webber of the Probation and Parole Service discloses that the offender left school in Year 9 and lived a transient lifestyle using her grandparents as the main support providers when in need. Her attendance at a TAFE college to further her education came to an end when she became pregnant having entered a relationship with Michael Lane, the father of her two children.

25    This relationship was volatile with numerous “break downs” attended by physical and emotional abuse of the offender by her partner. The offender terminated this relationship in 1998. The itinerant lifestyle which she and the children then followed led to her association with Paul Hill with whom she claims she was in love, believing these feelings to be reciprocated. The lifestyle of the offender and her children is thereafter accurately described by Ms Webber as both itinerant and chaotic for a period of less than three months continuing up until the commission of the offence.

26    Use of alcohol by the offender commenced when she was aged 12 years and was conceded by her to have been excessive at times, although not problematic at the time of the offence. She used cannabis at an early age but ceased all use when she became pregnant with her first child and has not consumed any since that time. For a period of time amphetamine use followed separation from her former partner but this apparently ceased in December 1999.

27    The offender’s criminal history is confined to two incidents of shoplifting which, for present purposes, are of no significance.

28    Her plea of guilty is of itself demonstrative of contrition and I accept the remorse she has shown in giving evidence as being genuine.

29    The offender subsequently to her recorded interviews with police, has made a statement and signed an undertaking to give evidence in accordance with that statement against the co-accused Paul Hill. She has affirmed this intention in her sworn testimony. The matters adverted to in the induced statement include direct evidence of conduct and admissions made by the co-accused which will be of significant assistance to authorities in what would otherwise be an almost wholly circumstantial case.

30 In this regard the offender is entitled to a substantial discount on sentence in addition to that referable to her guilty plea. R v Cartwright (1989) 17 NSWLR 243.

31    The offender is suffering from an incurable progressive genetically determined degeneration of the retina of each eye. This retinal dystrophy is described as producing tunnel vision, night blindness and blurriness. In the opinion of Dr F A Billson, professor of ophthalmology, University of Sydney, her visual function, absent recent examination, would be anticipated as presently being close to legal blindness which will deteriorate to blindness within the next decade. She also suffers from an overactive thyroid.

32    The report of Julie Hendy, neuropsychologist, of 27 August 2001 assesses the offender as extremely depressed and feeling seriously scarred by “… a traumatic event”, which I take to be the death of Tristen. The offender’s profile “… suggests a woman who is by nature submissive with a failure to assert herself in personal relationships”. I accept that the offender was not the dominant partner in her relationship with Paul Hill.

33    Whilst in custody the offender has been in strict protection which I assume to relate to the nature of the offence with which she was then charged. Future custody following the giving of evidence against the co-accused will be served in similar circumstances and be more onerous. I take this into account.

34    The likelihood of the offender re-offending is remote in the extreme, nevertheless the aspect of general deterrence in a crime as serious as manslaughter in the circumstances of this case dictates that a full custodial sentence be imposed. In R v Blacklidge (NSW CCA 12.12.1995) at 4 Gleeson CJ said this:

“… the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349 ; R v Hill (1981) 3 A Crim R 397 at 402).”

35    The Court was there dealing with a deliberate and willed act performed with intent to kill or cause grievous bodily harm or with reckless indifference to human life. The degree of criminality evident in the present case, being founded upon criminal negligence, is certainly of less gravity.

36    The starting point in the present case, taking into account the matters to which I have made reference, including considerations of the health of the offender is a sentence of 6 years imprisonment.

37    The offender’s plea of guilty, her contrition and remorse and the utilitarian benefits which are important in this case warrant a discount of 17%. The proposed assistance to authorities is potentially significant and warrants a discount of 33%, a total of 50% reducing the sentence to 3 years imprisonment.

38    The offender has served 1 year and 18 days in custody before grant of bail for which she is to have credit.

39 In my view, there are special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act, 1999 which warrant a longer than usual period of supervision on parole and a lesser period in custody. These include: the offender’s prior good character; her youthful age; her family support; the onerous conditions under which she will serve her sentence and her medical condition. She will need to undertake parenting and personal development programs under the guidance of the Probation and Parole Service.

40    Leanne Charmaine Eriksson on the charge of manslaughter to which you have pleaded guilty and have been convicted, you are sentenced to imprisonment for 3 years deemed to have commenced on 20 August 2000 and expiring on 19 August 2003. There will be a non-parole period of 18 months deemed to have commenced on 20 August 2000 and expiring on 19 February 2002 on which date I direct that you be released to parole. I further direct that in addition to the standard conditions imposed by the regulations governing parole that when released to parole you undertake such parenting and personal development programs as the Probation and Parole Service deems appropriate.

Last Modified: 09/10/2001