R v ES (No 2)

[2018] NSWSC 1708

Supreme Court

New South Wales

Medium Neutral Citation:	R v ES (No 2) [2018] NSWSC 1708
Hearing dates:	12 October 2018
Decision date:	09 November 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Offender convicted of the unlawful killing of Liana on 14 November 2015 and sentenced to a term of imprisonment for 8 years with a non-parole period of 5 years commencing on 14 November 2015 and expiring on 13 November 2020 and a balance of term of 3 years expiring on 13 November 2023
Catchwords:	CRIME – sentence – manslaughter by dangerous and unlawful act – death of baby caused by shaking – consideration of weight to be given to history stated to psychiatrist and psychologist where offender did not give evidence – consideration of relevance of the possibility of deportation
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 (NSW), s 15E Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), 21A(3)(i), 28(4), 32 Crimes Act 1900 (NSW), ss 24, 59
Cases Cited:	Alvares v R; Farache v R [2011] NSWCCA 33 Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Butters v R [2010] NSWCCA 1 Imbornone v R [2017] NSWCCA 144 Kristensen v R [2018] NSWCCA 189 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 R v Blacklidge (Unreported, 12 December 1995, NSWCCA) R v BT [2017] NSWSC 1600 R v Dawes [2004] NSWCCA 363 R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 R v Halloun [2014] NSWSC 1705 R v Hooper [2004] NSWCCA 10 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 R v Shepherd [2010] NSWSC 154 Woodgate v R [2009] NSWCCA 137
Category:	Sentence
Parties:	Regina ES (Offender)
Representation:	Counsel: K Gilson (Crown) G James QC (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Oxford Lawyers (Offender)
File Number(s):	2015/16273
Publication restriction:	Section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) prohibits identification of the child victim in these proceedings An order has been made pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of the name of and any identifying information about the offender

Judgment

1. HER HONOUR: The offender, referred to in these proceedings as ES, has pleaded guilty to the unlawful killing of his infant daughter, Liana. [1] The basis for the plea is manslaughter by a dangerous and unlawful act. He now stands to be sentenced for that offence. The offender also asks the Court, in sentencing him, to take into account a separate offence of assault occasioning actual bodily harm committed against Liana. [2]

   1. The mother has given her consent pursuant to s 15E of the Children’s (Criminal Proceedings) Act 1987 (NSW) to the child being referred to by that name.

   2. As allowed under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. [3] There is no standard non-parole period prescribed for that offence. The maximum penalty for the offence of assault occasioning actual bodily harm is imprisonment for 5 years. [4]

   3. Crimes Act 1900 (NSW), s 24.

   4. Ibid s 59.

Circumstances of the offence

3. Liana died as a result of being shaken by the offender as he was trying to settle her. She was just under 3 months old.

4. The relevant circumstances were provided to the Court in a statement of agreed facts and may be summarised as follows. On 13 November 2015, the offender was at home with his wife (Liana’s mother) and Liana.

5. Liana awoke at around 9:30 am and was fed and changed by her mother, who then placed her back in her cot. The mother watched her for more than an hour and observed her to be playing, giggling and otherwise responsive. The offender was still asleep at that time.

6. At around 10:30 am, Liana started crying. The mother tried to comfort her but she continued crying. The offender woke up and took Liana from the mother, telling her to get another bottle ready. The mother told the offender she had given Liana her milk not long ago and that she thought Liana wanted to sleep. The offender insisted that she go and prepare another bottle. The offender moved to the lounge room with Liana in his arms. Whilst the mother was preparing the bottle, she could not see the offender.

7. At one point, Liana’s crying increased and the mother went to the kitchen door where she could see the offender. He was holding Liana, talking to her and trying to calm her down. The mother then returned to preparing the bottle in the kitchen where she remained for about 4 or 5 minutes. Suddenly, the mother heard Liana’s crying get much louder; she described the crying as being “from the throat” and said that it was deep, loud and unusual. Suddenly, the crying stopped completely.

8. As soon as she heard the crying stop, the mother went into the lounge where she saw the offender holding Liana underneath her arms. He had a shocked look on his face. The mother noticed that Liana was “floppy” and was not moving; her eyes were closed and did not open again. The mother saw the offender “tapping” Liana on the back, apparently trying to get her to breathe.

9. At 10:39 am, the offender rang “000” to request an ambulance. However, due to communication difficulties, he was unable to provide sufficient information for an ambulance to be despatched and he terminated the call. The operator called back and asked what had happened. The offender responded “my baby, she crying and she just stop…doesn’t feel good, she just cry then stop…”. The offender then decided to drive the short distance to Liverpool Hospital.

10. The offender drove while the mother nursed Liana in the passenger seat. The offender carried the child into the emergency department at 10:52 am. She was not breathing and had no pulse. She was stabilised but remained in a critical condition, having periods of high heart rate and high blood pressure thought to be caused either by seizures or by intermittent over-activity of the nervous system consistent with severe brain injury. The mandatory report was made to the Child Protection Hotline and detectives attended the Hospital.

11. Chest x-rays revealed old, healed and healing rib fractures. Medical staff also noted various bruises across Liana’s face, torso and arms. The offender admits that he inflicted some of those bruises prior to his shaking of her on the morning of 13 November 2015. While Liana was being resuscitated, the offender said to hospital staff:

“you will find a bite mark on Liana. I’m trained as a life-guard in my country and we were taught to inflict some pain to get a response…you will find my teeth marks on her because I was trying to get a response…”

12. The offender also said “sometimes I shake her.”

13. When asked what he had done, he mimed raising Liana up with his arms and shaking. He then mimed putting her over his shoulder and patting her on the back. He said he bit her to get a response. He also said that he had bitten her more than once on the way to the hospital to get a response.

14. The mother denies the offender bit the victim on the way to hospital. She cannot refute that the offender may have bitten the baby’s back at the apartment prior to setting out for the hospital.

15. Liana was transferred to the Children’s Hospital at Randwick where she was found to have brain and cervical spine injuries consistent with having been shaken. After consultation with the mother, her life support was turned off on 17 November 2015 and she died shortly thereafter.

16. A post mortem examination concluded that the direct cause of death was the consequences of closed head injury and that the bruises across Liana’s torso, face and arms were of differing ages.

Circumstances of the offender

17. The offender did not give evidence at the proceedings on sentence. His personal circumstances were put before the Court primarily through two expert reports: a report from Dr Richard Furst, a forensic psychiatrist and a report from Mr Sam Borenstein, a clinical psychologist. Each report set out the history taken from the offender and the conclusions based on that history.

18. The Crown questioned the weight that could properly be placed on those reports, citing authorities emphasising the caution with which courts should treat material that has not been tested by cross-examination or that is not otherwise capable of verification. [5] The decision in Qutami is commonly cited as authority for the “principle” that very considerable caution must be exercised in relying on hearsay evidence of statements made by offenders to doctors, psychologists and psychiatrists when the offender does not give evidence. [6] The proposition that caution must be exercised before accepting untested hearsay statements is unexceptionable as far as it goes; whether the qualifying words “very considerable” add anything may be doubted. But care must be taken not to elevate such remarks to a principle requiring the rejection of such evidence.

    5. Alvares v R; Farache v R [2011] NSWCCA 33; Qutami v R (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58]-[59].

    6. R v Hooper [2004] NSWCCA 10 at [49]; Woodgate v R [2009] NSWCCA 137 at [19]; Butters v R [2010] NSWCCA 1 at [18]; Imbornone v R [2017] NSWCCA 144 at [57].

19. In the present case, the Court has been presented with two thorough reports from professionals with considerable experience necessarily including experience in taking a careful patient history. The accounts from the offender set out in each report are coherent, largely consistent and not inherently implausible. Neither expert was requested for cross-examination by the Crown. I am satisfied that I should proceed on the basis that the premises for their opinions may largely be accepted.

20. The offender’s personal circumstances as drawn from those reports may be summarised as follows. The offender was born in 1982 and was aged 33 years at the time of the offence. He is now aged 36. He was born in Tehran, Iran, and has a number of siblings. His father died when the offender was 8. The family struggled after his father’s death. The offender spent time living on the streets to escape violence at the hands of his older brother. At the age of about 15 he was arrested for stealing and spent three months in custody during which he was beaten and sexually assaulted by a male police officer. He attempted suicide, after which he was granted bail. As a result of the sexual abuse he continued to self-harm and developed a dependence on alcohol and illicit drugs. He was exempted from compulsory military service in Iran on the basis of his mental health issues.

21. The offender claimed in his account to the experts to have stopped taking illicit drugs at some point and converted to Christianity. As noted by the Crown, the reports are inconsistent as to when that occurred; the offender may have exaggerated the ease with which he made that transition. In any event, I accept that he converted from a drug lifestyle to a life of Christian worship at some stage. The offender claims to have been detained and tortured because public Christian worship is illegal in Iran. He states that he was beaten with a metal pole, fracturing his back and nose, and forced to sign an undertaking to renounce Christianity. His account of those injuries is corroborated by medical evidence tendered at the proceedings on sentence.

22. In 2013, the offender fled to Malaysia and travelled by boat to Australia via Indonesia. After two months in immigration detention he was granted refugee status on the basis of his conversion to Christianity, his suffering of PTSD and his subjection to torture leaving him with a fractured back. He travelled to Brisbane where he met his wife at church. He travelled to Sydney to gain employment as a house painter after which his wife joined him in Sydney and they became engaged.

23. The offender told Dr Furst that, since arriving in Australia, he has not used any drugs and has not been drinking. I note that Corrective Services records note a number of infringements for possession of drugs; it is possible that he has reverted to drug use in prison and will require support with rehabilitation upon his release.

24. Dr Furst expressed the opinion that the offender has post-traumatic stress disorder and substance use disorder (in remission). He stated that the behavioural manifestations of PTSD include “a tendency towards irritability and anger, getting into fights more readily, engaging in reckless or self-destructive behaviour, including alcohol and drug abuse, self-harming behaviour and suicidal behaviour.” [7] Dr Furst concluded that the offender was “poorly equipped for the demands of parenting and the associated stresses he found himself facing on a daily and nightly basis at the time of his offending as a consequence of inexperience and his mental conditions.” He said: “In my opinion, his untreated [PTSD] in particular, with associated symptoms of anxiety, insomnia and underlying borderline personality traits likely contributed to his excessive, impulsive and violent reaction when he shook [the victim]…”

    7. Exhibit 1, page 9.

25. Mr Borenstein was also of the opinion that the offender suffers from chronic and severe post-traumatic stress disorder. He said that people who suffer from chronic PTSD “are at greater risk of suffering emotional regressions when subject to stress” and expressed the opinion that the offender is “prone to acute regressions, in particular depressed mood with symptoms of sleep disturbance, appetite disturbance, mood fluctuations, reduced motivation, reduced tolerance to frustration, irritability, fear and anxiety.” Mr Borenstein described the offender as having “low average intelligence, and very low emotional intelligence”. He said although the offender wanted a child, he was “emotionally ill-equipped to cope with parenthood.” Mr Borenstein concluded:

“based on [the offender’s] description of his mental state leading up to and during the offence, I am of the opinion he was in a relatively regressed emotional state and symptoms of PTSD were reactivated as he was navigating significant stresses and feeling unable to support his family.”

26. I accept the conclusions expressed in the two experts’ reports.

Sentencing considerations

27. It is well recognised that manslaughter is an offence which can be committed in a wide range of circumstances and with a wide range of degrees of culpability. The starting point is to make an assessment of the objective seriousness of the particular offence. In making that assessment, a primary consideration is the fact that a human life has been unlawfully taken. It is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it: R v Shepherd [2010] NSWSC 154 at [41] (citing R v Blacklidge (Unreported, 12 December 1995 NSWCCA); R v Dawes [2004] NSWCCA 363; and R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377). As recognised in Shepherd and BT,[8] an assault by a parent on an infant child resulting in death may be regarded as a grave and serious case of manslaughter. At less than three months of age, the victim in this case was particularly vulnerable.

    8. R v BT [2017] NSWSC 1600.

28. Beyond the recognition of those important considerations, the characterisation of the seriousness of the offence turns not so much on the category of manslaughter identified by the Crown (here, a dangerous and unlawful act) but on an assessment of the facts.

29. The Crown expressly “conceded” that the objective seriousness of the offence “falls below the mid-range”. The submission echoes the language of the pre-Muldrock [9] era and is, with respect, unhelpful in that respect. I would understand the import of the concession to be that the offence is in the lower range of objective seriousness of offences of manslaughter committed by a parent on an infant child.

    9. Muldrock v R (2011) 244 CLR 120; [2011] HCA 39.

30. While I accept that concession, the offence remains one of some seriousness. I cannot be satisfied beyond reasonable doubt that the offender fully appreciated the dangerousness of his act. I also accept that the offence was probably the result of a sudden loss of self-control in challenging circumstances. The impact of the offender’s PTSD on his capacity to manage the stresses of early parenting must be taken into account in this context and reduces his moral culpability for the offence. However, it is clear (beyond reasonable doubt) from the medical evidence that the shaking incident must have involved some force.

31. The significance of that finding must be considered in the context of the facts relied upon to support the charge of assault occasioning actual bodily harm. But for a vague and evidently carefully drawn admission, the information about that offence is scant. The Crown tendered a “Scan Medical Protocol” providing details of the many bruises and marks observed on Liana when she was examined at the Children’s Hospital. Parts of the report are difficult to read and technical terms are used. The extent of the offender’s admission is that “he caused the external bruises numbered 1-13, 15 & 18 in the Scan Medical Protocol” and that “he inflicted some of the bruises on the victim prior to his shaking of her on the morning of 13 November 2015”. The “old, healed and healing rib fractures” described by the doctor remain unexplained and must be disregarded.

32. The admission as to the bruises is the basis for the Form 1 offence, which is to be taken into account in accordance with the principles stated in Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. Those principles recognise that the offence to be taken into account may afford a basis for the Court to give greater weight to personal deterrence and retribution.

33. The Crown submitted that the Form 1 offence shows a disregard for the safety and comfort of the child and reflects that the subsequent shaking of the child was not an isolated act of violence. The offender’s position was less clear. Senior counsel for the offender, Mr Greg James QC, submitted that the earlier injuries may have involved an activity which was not intended to cause hurt but which in fact did. The suggestion was that the accused had been overly forceful in his affection for the child. Mr James noted that the agreed facts record an earlier incident when the offender and Liana’s mother had an argument after she saw “a bite or a sucking bruise or mark” on Liana which she realised was caused by him “sucking the baby”. The mother was angry with the offender and remonstrated with him for causing the bruise.

34. A family friend also observed one such bruise. On 8 November 2015, several days before the shaking incident, there was a conversation about that in which the mother pointed to the bruise saying, “her dad”. The offender responded, “yeah but I love her too much. What can I do?”. The son of the friend filmed the scene on his mobile phone.

35. It is not possible to be satisfied beyond reasonable doubt that bruises inflicted before the shaking incident were not inflicted in that way, as overly forceful expressions of affection rather than indicating some form of cruelty. However, those same agreed facts should have warned the offender of the child’s vulnerability and that he was being excessively forceful in his manner of dealing with her. His response to the mother’s remonstration reveals a measure of arrogance or at least disregard for the mother’s concern for the child. That evidence takes the case slightly outside the category of a wholly isolated loss of control and indicates that personal deterrence must be given some weight in this case.

Mitigating factors

36. The offender has no prior convictions in Australia. [10] The available material (which relates only to his time in Australia) indicates that he is well regarded and of good character.

    10. Crimes (Sentencing Procedure) Act, s 21A(3)(e).

36. It is clear from his discussions with the psychiatrist and psychologist and from a letter he has written to the Court that he is wracked with remorse[11] and will be haunted by this tragedy for the rest of his life. [12] He appears to have made good progress and made significant efforts to participate in constructive programs whilst in custody. Having regard to his complete remorse but also mindful of his untreated mental health issues, I consider that he has reasonable prospects of rehabilitation.

    11. Ibid s 21A(3)(i).

    12. Exhibit 1, page 1.

37. I accept that the offender’s time in custody will be more onerous than for some prisoners, largely for the reasons identified in submissions by his counsel, which find support in the report of Dr Furst and other material tendered in the offender’s case. The offender has a limited command of the English language. He has limited contact with family and friends and receives no visitors (other than prison chaplains). He has been assaulted in custody by another prisoner and is classified as a prisoner in need of protection; he holds a rational fear for his safety on that account. His experience of that fear is exacerbated by the causes and symptoms of his PTSD. I have taken those considerations into account.

38. It is necessary to have regard to the offender’s plea of guilty. He was initially charged with murder. The plea of guilty to manslaughter was entered a few days before the date fixed for trial after the Crown presented an amended indictment which included that offence as a separate count. After the offender indicated his intention to plead guilty to that count on the basis of a dangerous and unlawful act, the Crown indicated its election not to proceed further on the count of murder. The Crown also indicated its consent at that stage to a request by the offender to have the charge of assault taken into account on a Form 1. The lateness of the plea is not attributable to the Crown; a plea on the same basis would have been accepted before committal for trial.

39. Counsel for the offender submitted in one place that he should receive a discount in the order of 15% to 20% for the plea; elsewhere in the written submissions and in oral submissions it was submitted that the discount should be 20% to 25%. The submission was not expanded upon. The Crown submitted that the discount should be in the order of 10% to 15%, which is more consistent with the relevant principles. I consider that the appropriate course is to reduce the sentence by approximately 12%.

Possibility of deportation

41. A question was raised at the proceedings on sentence as to the relevance of the offender’s migration status. It appears to be common ground that his protection visa will necessarily be cancelled as a result of his conviction of the present offence and accordingly that he faces a risk of deportation. That is not relevant in determining the structure of the sentence: see Kristensenv R [2018] NSWCCA 189 at [23] to [34]. The offender submitted that the prospect of deportation to the country in which he was persecuted would weigh heavily on the offender’s mind and should be taken into account on that basis. I have already indicated my acceptance, for other reasons, of the submission that the offender will find the custodial portion of his sentence onerous. Any further consideration that might be given to the impact of the prospect of deportation is of no additional significance in that context. Accordingly, it is not necessary to consider the issue arguably left open in Kristensen at [35] (per Payne JA, Button J agreeing at [46]) and [43] (per R A Hulme J).

42. In summary, I am satisfied that there are special circumstances warranting some adjustment to the statutory ratio of the non-parole period to the balance of term, for the reasons identified above. I have disregarded the likelihood of the offender being deported in making that adjustment.

Victim impact statement

43. Liana’s mother provided a victim impact statement which was read to the Court by a friend at the proceedings on sentence. The Crown applied to have the statement taken into account in connection with the determination of the punishment for the offence. [13] That is appropriate. The statement cogently explained the devastating impact of this crime on the child’s mother. As one would expect, her whole world has been torn apart. Her grief and distress remain raw and palpable.

    13. Crimes (Sentencing Procedure) Act, s 28(4).

44. The law does not regard some lives as being more valuable to the community than others[14] but the statute permits me to proceed on the basis that the devastating impact of the death of a child on a mother is an aspect of the harm done to the community by this offence.

    14. R v Halloun [2014] NSWSC 1705 at [46].

45. The offender has been in custody since his arrest on 14 November 2015. It is appropriate to fix the sentence to commence on that date.

46. Mr James made a submission which came close to suggesting that it would be an adequate sentence for the offender to receive a non-parole period reflecting only the time served to date. Having considered the comparable decisions relied upon by both parties and on the strength of my findings in this judgment I do not accept that proposition. I consider that a non-parole period of as little as 3 years would not adequately reflect the seriousness of this offence.

47. ES please stand. For the unlawful killing of Liana you are convicted. I sentence you to a term of imprisonment with a non-parole period of 5 years commencing on 14 November 2015 and expiring on 13 November 2020 and a balance of term of 3 years expiring on 13 November 2023. The first date on which you will be eligible for release to parole is 13 November 2020.

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Endnotes

Decision last updated: 13 November 2018