R v Forrest

[2013] NSWSC 377

Supreme Court

New South Wales

Medium Neutral Citation:

R v Forrest [2013] NSWSC 377

Hearing dates:

11/03/2013; 5/04/2013

Decision date:

19 April 2013

Before:

Fullerton J

Decision:

Convicted of the offence of manslaughter.

Sentenced to imprisonment for 8 years commencing 7 May 2011, comprised of a non-parole period of 6 years expiring 6 May 2017, with a balance of term of 2 years expiring 6 May 2019.

Catchwords:

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - child victim - offender was in a position of trust and authority

Legislation Cited:

Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

MAH v R [2006] NSWCCA 226
R v Bilton [2000] NSWSC 1113
R v Clare [2006] NSWSC 812
R v Compton [2008] NSWSC 204
R v Ditfort (Court of Criminal Appeal, 17 March 1992, unreported)
R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
R v Recalde [2000] NSWSC 1247
R v Shepherd [2010] NSWSC 154
R v Webb [2002] NSWSC 618

Category:

Sentence

Parties:

The Crown
Nathan William Forrest (Offender)

Representation:

Counsel:
P Barnett SC (Crown)
E Wilson SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
North & Badgery Solicitors (Offender)

File Number(s):

2011/149755

REMARKS ON SENTENCE

1. HER HONOUR: Bailey Constable was four years old at the time of his death on 1 April 2011.

1. Death was pronounced at 11.51pm after the offender presented with the child at Warren Hospital at 11.05pm, unconscious and with no motor responses. He had a carotid pulse but no radial pulse. He did not regain consciousness.

1. His parents have consented to the publication of his name for the purpose of these proceedings. Accordingly, I direct that the non-publication order previously made under the Children (Criminal Proceedings) Act 1987 be lifted.

1. It is accepted that the version of events the offender gave at the hospital on 1 April 2011 and to police on both 2 and 11 April, to the effect that he had left Bailey in the bath momentarily and that he must have slipped and hit his head before falling face down into the water unconscious, was deliberately untrue and proffered with the intention of concealing the fact that he had repeatedly struck the child about the head after which the child lapsed into unconsciousness. I note that the offender insisted that the child's mother give police the same false account which she maintained until 6 May 2011 when she provided a detailed statement implicating the offender.

1. On 7 May 2011 the offender was charged with Bailey's murder. He has been in custody since that date.

1. On 28 August 2012 he was committed for trial following a committal hearing where a number of expert medical witnesses gave evidence and were cross-examined about the cause and mechanism of death.

1. On his arraignment in this Court on 5 October 2012 he entered a plea of not guilty and a date was fixed for his trial.

1. On 11 March 2013 he was re-arraigned and entered a plea of guilty to manslaughter. The Crown accepted the plea in discharge of the indictment charging murder on the basis that the assault of the child was both unlawful and dangerous, and that it caused his death. In so doing the Crown conceded that the evidence would not support a finding beyond reasonable doubt that when the offender assaulted the child he intended to kill him or to cause him really serious injury as distinct from those same actions, viewed objectively, carrying a significant risk that the child would suffer serious injury.

1. Consistent with the authorities, the timing of the plea of guilty is critical to the assessment of the extent to which the sentence to be imposed will be discounted. The plea of guilty entered after committal, and after the matter was listed for trial, indeed within a week of the trial date, is on any view a late plea. I regard his plea of guilty as reflecting his acceptance of the inevitable factual finding that what he did to Bailey in the bathroom when Ms Constable heard the loud bangs and his angry remonstrations would have been found by a jury to have been causative of death in the legal sense. The plea does, however, carry some residual utilitarian value. I propose to allow a discount of 10 per cent. His sentence will be backdated to account for his pre-sentence custody.

1. On sentence the Crown tendered an agreed statement of facts supplemented by a number of statements, including one from the nurse who was on duty in the emergency department of the hospital and to whom the offender gave the first of a series of untruthful explanations for Bailey's condition. The Crown also tendered two post-mortem reports (an incomplete report from Dr Nadesan dated 24 September 2011 and the completed report form Dr Cala dated 25 November 2011); a neuropathology report from Dr Buckland dated 28 September 2011; the evidence at committal from various doctors and two reports from Dr Hilton, a forensic pathologist, prepared after the committal at the request of the offender's solicitors.

1. The statement of facts was also supplemented by oral evidence from Jessica Constable, Bailey's mother. Where her evidence is at variance with her statement to police, I prefer her sworn evidence. I accept her as a witness who was, in the proceedings before me, genuinely endeavouring to tell the truth.

The facts

1. The offender was 22 at the time of the offence. He had been in a de facto relationship with Jessica Constable since Christmas of 2010. They resided at Ms Constable's home at Warren, in central New South Wales. The child was the only other member of the household at the time of his death. Two younger siblings had been removed from the home by their father some weeks earlier because of his concern at the level of care they were receiving. He was not Bailey's father.

1. Ms Constable described the offender as loving and friendly in the early stages of their relationship, but when he was under the influence of methamphetamine or when withdrawing from the drug he was violent towards her and caused damage to her property. She told police he had only used drugs, to her knowledge, a few times before the Christmas period but that his use increased dramatically after that time. When he was under the influence of drugs, Ms Constable described the offender as "like a ticking time bomb". She could not tell whether, or when, he was going to yell and scream or hit something, including her. This was coincident with the offender's last contact with the Probation and Parole Service during a period of supervision following a conviction for violence in Queensland in February 2010. In November 2011 he reported to his parole officer that he had relapsed into drug use through his friendship with a drug dealer from whom he could get drugs at a reduced cost.

1. On 20 January 2011, arrangements were made for Bailey to stay at the home of his maternal grandparents, Karen and Jeffery Chapman, in Warren. On different occasions, over subsequent weeks, Bailey said that the offender had hurt him. He told Mrs Chapman that the offender hurt him and held him down in the bath. His grandparents attempted to air concerns about their grandson's welfare with the Department of Community Services and the Police but no official action was taken. Bailey was returned to the care of his mother on 26 February 2011.

1. On 28 March 2011, Bailey was taken to Warren Hospital by his mother and the offender, where he was seen by Dr Thein Win. (Dr Win also attended to Bailey on the night he died.) On 28 March Dr Win noted that Bailey had an injury to his nose, black eyes and an abrasion to his right forehead. The offender claimed that the child had fallen and hit his face against a bed. The evidence led on sentence, including residual evidence of these injuries revealed on autopsy and the views of the forensic pathologist as to their likely cause, raise serious questions as to whether those injuries were in fact sustained accidentally. The evidence does not, however, permit me to find, to the criminal standard, that they were deliberately inflicted by the offender. The child was again returned to the care of his mother and the offender, as her de facto partner.

1. On 1 April 2011 at 1am, and progressively throughout that day, the offender self-administered injections of methamphetamine. At 9.30am a number of people arrived at Ms Constable's home and consumed cannabis. The offender left with them.

1. Bailey was ill throughout that day, suffering from constant diarrhoea, vomiting and a lack of appetite. He was also suffering from a chronic and recurrent urinary tract infection which was being treated with Panadol.

1. The offender returned at approximately 9.30pm by which time the child was asleep in his bed. Ms Constable noticed that the offender was restless and agitated and that his hands were shaking, mannerisms that she had previously observed when he was under the influence of amphetamine-based drugs.

1. Some short time later Bailey called out that he had wet his bed. Ms Constable went to tend to the child. She changed his bedding while the offender took the child to the bathroom and ran the bath. She noticed that the offender's mood had worsened. She was ordered to leave the bathroom. From the lounge room, Ms Constable heard the offender yell out in an aggressive and angry manner on four successive occasions, "Stop it, Bailey, stop it", associated with a loud bang on each occasion. She eventually walked down the hallway to the bathroom. When she got to the door she saw the offender pulling the child out of the bath. She did not ask what had happened as she feared being assaulted. As Bailey commenced to walk towards her he fell to his knees. She picked him up and carried him to the bedroom where she dried and dressed him for bed. She said he was hot to the touch and appeared glassy-eyed. He fell again to his knees as he tried to walk to his bed at the offender's direction. The offender was by this time very agitated and ordered Ms Constable to leave the bedroom. She again complied out of fear for herself, leaving Bailey standing in the bedroom with the offender. She did not hear anything further from the child or the offender. A short while later the offender joined her in the lounge room, reporting that the child was fine and going to sleep.

1. A few minutes later the offender volunteered to go and check on the child. Ms Constable regarded this as unusual as he had not previously displayed concern of that kind. Almost immediately the offender yelled out for Ms Constable to come to the bedroom. Ms Constable, fearing for the safety of the child, took her mobile telephone with her. She saw the child on the bedroom floor lying on his back. He was blue in colour. The offender picked him up and shook him vigorously but the child did not respond. The offender commenced CPR in the course of which the child brought up a quantity of what was described as water which was red in colour.

1. Ms Constable unsuccessfully attempted to make contact with emergency services by dialling 000. The offender told Ms Constable to send a text message to his parents as they lived nearby. Ms Constable then rang 000 again. During this call she noticed the child was awake and lying in the offender's lap but he did not seem to her to be fully conscious. He was still glassy-eyed.

1. The offender's father arrived within minutes of the text message being sent, and took the child to Warren Hospital with the offender where he was later pronounced deceased.

The results of autopsy

1. At autopsy multiple sites of redness with underlying bruising were located on the child's forehead and both cheeks, with a greater concentration of bruising on the right side of the face. The largest bruise measured 3.5cm x 2.5cm. There were multiple parallel patterned areas of bruising on the back of the head, on both the left and right sides, associated with bleeding under the scalp. There was also bruising to the limbs. There was an abrasion below the left eye and distinct areas of abrasion on the bridge, sides and tip of the nose which were described as "not recent". (I am satisfied these injuries were those sustained on 28 March.) Both buttocks showed diffuse pink bruising without bleeding into the subcutaneous tissues and an abraded contusion across the back above the buttock. (It would appear that these were the result of smacking and the use of a belt delivered some time previously as punishment for some unspecified wrong.) There was generalised acute inflammation of the child's genitalia and an area of deep bruising in the scrotal skin with associated acute inflammation. (These injuries would appear to have been the result of the untreated urinary tract infection, although trauma could not be excluded.) The abdominal cavity contained 50ml of blood with an associated area of fresh internal bruising surrounding the ascending colon. Photographs showed the presence of blood in the airways and major bronchi of each lung and a quantity of clear pleural fluid in the space between the surface of the lung and the chest wall.

The cause of death

1. At the committal hearing, and in the various forensic investigations undertaken since that date by both the Crown and the offender's solicitor, with the most recent report furnished by Dr Hilton in March 2013, the precise cause and mechanism of Bailey's death was the subject of considerable debate.

1. Dr Cala, the forensic pathologist who completed the autopsy which had been commenced but not completed by Dr Nadesan, originally reported that the cause of death was blunt force head trauma as evidenced by the internal and external bruising to the child's face and head. Dr Cala also noted that there was a right-sided subdural haemorrhage associated with brain swelling but not associated with any fracture to the skull. He was unable to determine with certainty which head and/or facial injuries led to the subdural haemorrhage. In his view, the patterned injuries observed at the back of the head could have been occasioned through contact with a tiled surface or a carpeted surface. He specifically noted that there was no evidence of drowning or immersion. In his opinion the other recent non-accidental injuries to the child's face, abdomen, buttocks and limbs were not life threatening, but they could have significantly incapacitated the child leading to his death.

1. Dr Buckland, a neuropathologist, was of the opinion that the injuries observed in the child's brain and spinal cord, including subdural blood at the back of the head; a generalised spread of subarachnoid blood and only mild swelling of the brain with no demonstrable brain damage were insufficient to cause death, although they may have resulted in a period of unconsciousness. Those views cast doubt on Dr Cala's appointment of the cause of death as blunt force head injury. After considering Dr Buckland's opinion and his acknowledged expertise as a neuropathologist, Dr Cala amended his views as to cause of death as follows:

I am now of the view that my former opinion which related to the head injuries as causing death was overly narrow and did not fully take into full consideration the effects of the other injuries.

My view now is that this child died from "multiple injuries".

It is the combination of all the injuries which has led to the death of this child, not just the head injuries even though the head injuries could hardly be viewed as trivial.

1. Dr Hilton was of the view that after reviewing all the available evidence and the opinions of his colleagues that the cause of death was better described as "undetermined". He did, however, offer what I consider to be valuable insights into the significance of the inhaled blood and the presence of the fluid in the child's lungs which inform the findings I must make for sentencing purposes, both as to the cause of death and the injuries inflicted by the offender that were causative of death. He reported that the photographs taken at autopsy:

... show unequivocal evidence of wide spread aspiration of blood into the anatomical parts of the lung where gas exchange normally takes place. The presence of this much blood may be expected to substantially impair the body's ability to exchange inhaled oxygen for carbon dioxide and thus lead to a degree of asphyxiation.

An additional possibility is suggested by the photographic appearance of the non-bloody part of the lungs and by Dr Nadesan's description of "a little clear pleural fluid" (fluid in the potential space between the lung surface and the chest wall). Although the diagnosis of "drowning" has been dismissed the aspiration of small but pathologically significant quantities of fresh water has not. Because fresh (tap) water is hypotonic (has a lower concentration of chemicals) in comparison to blood, in addition to its initial asphyxiating effect when aspirated, it is readily absorbed into the blood stream through the walls of the little air sacs of the lung and can cause profound additional disruption of the blood chemistry including the release of potassium from broken-up (haemolysed) red blood cells. Again this is difficult to demonstrate conclusively at post-mortem even when actively sought.

...

While there is some bruising of the root of Bailey's right lung (and possibly the periphery) there is manifest evidence of inhalation of considerable quantities of blood, possibly from his demonstrated nose injury. There is photographic and historical evidence to at least suggest the aspiration of fresh water. All this would suggest an element of respiratory failure and its concomitant biochemical disturbances as causative factors in his death.

1. Many of the contentious issues raised by the expert medical evidence concerning the cause of death have been resolved for sentencing purposes since, by his plea of guilty, the offender accepts that he caused Bailey's death when he struck him about the head and body on the night he died. However, because the offender persists with the claim that he has no memory of what he did to Bailey before the child lapsed into unconsciousness in the bedroom (which I am satisfied the offender knew when he left the child's bedroom, as distinct from something he discovered when he returned, ostensibly to check on him, minutes later) it is necessary for me to make positive findings as to which of the injuries revealed on autopsy the offender was responsible for inflicting and which of those, in combination, were causative of death.

1. Efforts to achieve unanimity between the forensic pathologists as to the precise mechanism or cause of death was complicated by the suggestion adverted to by Dr Hilton that respiratory failure may have been a causative factor. This raises the question whether the offender attempted to deliberately submerge Bailey's head or face in the bath before, after, or at the time he repeatedly struck him about the head, and that in that process the child inhaled water and blood into his lungs thereby putting his respiratory function under stress, or whether the inhalation of bath water was an accidental incident of that assault.

1. The resolution of that question is not unimportant for sentencing purposes since the level and type of violence inflicted by an offender are factors to be taken into consideration in the assessment of objective seriousness of a manslaughter by an unlawful and dangerous act. In this case, because the Crown has accepted the offender's plea of guilty to manslaughter, even were I satisfied that the evidence supports a finding that the offender deliberately submerged Bailey's head or face in the bath, I would be required to confine use of that fact to informing the nature and extent of his unlawful treatment of the child, as distinct from considering that conduct as capable of proving that he attempted or intended to drown Bailey after he had struck him or in the process of striking him.

1. Despite my grave suspicions that the offender did deliberately submerge the child's face and head in the bath, whether as part of his punishment for soiling his bed or simply a result of the offender's unrestrained anger, I am unable to reach that conclusion beyond reasonable doubt. There is at least the reasonable possibility that when he was repeatedly struck about the head and body Bailey lost his balance and fell down into the bath, inhaling water in the process. Even so, the obvious risk of the child falling and inhaling water when repeatedly struck to the head cannot be ignored and will not be ignored for sentencing purposes.

1. By his plea of guilty, his adoption of an agreed statement of facts and his counsel's concession in oral submissions, the offender accepts that he is to be sentenced on the basis that he repeatedly struck Bailey's head and that at, or about, the same time he delivered a blow or blows to the child's abdomen. It is not necessary for me to determine whether those assaults or that series of assaults occurred in the bathroom, or the bathroom and the bedroom. It is sufficient that I am satisfied (and I am to the criminal standard) they were ultimately productive of multiple sites of bruising to Bailey's face and head, with an associated subdural haemorrhage and an internal abdominal injury. Although neither the subdural haemorrhage nor the abdominal injury were themselves capable of causing the child's death, in the context of his chronic urinary tract infection and the other head injuries which, to the offender's knowledge, he had suffered on 28 March 2011, and the likelihood that he inhaled bath water and blood in the course of the assault, thereby compromising his respiratory function, I am satisfied the combination of all of the assaultive injuries inflicted by the offender on 1 April 2011 caused the child's death.

1. While for sentencing purposes I am obliged to isolate only those traumatic injuries that can be attributed to the actions of the offender (and for that reason I must disregard the injuries to his nose and buttocks), since I am well satisfied the offender was aware of the child's generalised state of ill health (including the injuries sustained within days of his death) for the offender to deliberately inflict further head injuries to the child's head days later, when frank evidence of the injury to his face and nose was still obvious, adds to the gravity of his offending.

Objective seriousness

1. As assessment of the objective seriousness of this offence is an essential part of the sentencing exercise. That assessment is undertaken referable to the nature of the offending (taking into account any statutory aggravating or mitigating factors) and not circumstances personal to the offender or any explanation for criminal conduct that may be able to be divined from his subjective circumstances.

1. The unlawful taking of a human life has always been regarded by sentencing courts as a most serious crime and one which the community is entitled to expect will attract a proper and proportionate punishment. It has also been long recognised that the circumstances that give rise to a conviction for manslaughter, and the degree of culpability in offending of that kind, vary to such an extent that it is not possible to apply any standard or tariff in the imposition of sentence. Each case must be considered referable to its own facts. In cases of manslaughter involving the death of a child, I acknowledge that particular care must be taken when comparing the sentences imposed in other cases since, even where a child has been killed in a violent attack, an identifiable sentencing range or pattern is not discernable despite the sense of outrage that cases of that kind will inevitably attract and the fact that retribution must play a prominent part in the sentencing exercise (see R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at [42]).

1. Given the factual findings I have made as to the cause of death, and having taken care to isolate and characterise the injuries that can be attributed to the offender, the killing of this child, and what I am satisfied is a dearth of any factors that mitigate the seriousness of the offending and at least one factor that aggravates it, are such as to justify it being treated as a serious offence of manslaughter by an unlawful and dangerous act.

1. The factor that serves to aggravate the offending as provided for in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 is by reason of the fact that the offender was in a position of trust and authority after he assumed control of Bailey for the purpose of bathing him. Although not a feature that operates as a statutory aggravating factor, I also take into account in considering the objective seriousness of the offence that on the night Bailey was fatally assaulted he was particularly vulnerable and defenceless given his ill health and the fact that he was recovering from head injuries sustained a few days earlier.

1. Consistent with finding there was no deliberate attempt to drown the child, I am satisfied that there was no infliction of gratuitous cruelty in the course of the assaults (see R v Clare [2006] NSWSC 812). I am also satisfied that the violence to which Bailey was subjected, although considerable, was neither sustained nor premeditated. In combination, these findings operate to characterise the case as falling short of a worst case (see R v Webb [2002] NSWSC 618 at [40]). As to the level of violence that was involved, I note that although the multiple blows delivered to Bailey's head caused serious head injuries of the kind I have described, they were not sufficient to fracture his skull or to cause demonstrable brain damage. Similarly, the force of the blow to the child's abdomen causing internal bleeding, whilst also considerable, was not sufficient to rupture or tear internal organs. These are features distinguishing this case from a number of cases involving the death of a child by unlawful and dangerous act to which I was referred, which also justify this case being distinguished from a worst case (see Hoerler).

Subjective circumstances

1. The offender relied upon a report from Dr Richard Furst, forensic psychiatrist, dated 30 March 2013 based upon an interview on 21 March 2013 and a report form Anna Robilliard, forensic psychologist, dated 28 March 2013. She interviewed the offender on 15 March 2013.

1. The offender is the third born of seven siblings. He left school after completing Year 7 after which he worked with his father shooting feral pigs and goats, fencing and wood cutting. He also worked for six months as a stockman and in a number of supermarkets. He commenced Year 10 but left school within weeks. He was in receipt of unemployment benefits at the time of the offence. His family remains supportive of him.

1. Both reports detail the offender's lengthy history of poly-substance abuse. He first drank alcohol in his early teenage years and considered himself a heavy drinker by his late teens. He revealed to both Ms Robilliard and Dr Furst that he was sexually abused by a close family friend when he was 13 or 14 years of age and that he started using cannabis when he was 15 to suppress the anger and confusion he felt as a result of that abuse. His cannabis use escalated to the point where he was smoking about 4 grams per day at the time of the offence.

1. Following the death of his brother when the offender was 17, he started to use amphetamines and crystal methamphetamine to relieve his emotional distress. His use of drugs resulted in a number of encounters with the criminal justice system in Queensland, the most serious of which was an assault occasioning actual bodily harm in 2010 after he was refused access to a hotel, attracting a suspended sentence.

1. After a two-year relationship ended in 2010, at a time when he was working and apparently drug-free, the offender moved to Warren from Queensland. He reported that with limited job opportunities in central New South Wales he relapsed into drug use. It was around this time that he was introduced to Ms Constable.

1. On the day of the offence, the offender said that he was in "binge mode", having injected methamphetamine up to seven times in the 24 hours before the offence. As Dr Furst observed, this is indicative of the offender's drug dependence at high levels of tolerance, with his conduct on the day of the offence and prior to that time indicating a progressively deteriorating level of social and behavioural function.

1. While I do not regard his criminal record as a matter of aggravation under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, it is clear beyond any doubt that his chronic drug use and, most particularly, his relapse into high levels of use after a period of abstinence in the months preceding the offence, triggered a display of anger and the infliction of unprovoked violence which resulted in Bailey's death. While I have accepted that the offence was unplanned, his loss of temper and violent outbursts on other occasions when under the influence of drugs deprives him of any finding that this offence was wholly impulsive, or the result of a sudden loss of self-control, such as might have mitigated the objective seriousness of his offending.

Remorse and Rehabilitation

1. As I have already noted, the offender claims to have no memory of inflicting the injuries from which Bailey died. Nevertheless, he told Dr Furst that he has accepted full responsibility for causing the child's death and that he deserves to be punished. He said, "One night on drugs can ruin your life and the lives of 20 other people".

1. I do not accept that the offender's claimed for amnesia, asserted for the first time to Ms Robilliard after the plea was entered, is genuine. It cannot be reconciled with the sustained lies he told to medical staff and police on the night the child died and for some weeks thereafter. This diminishes the potential mitigating effect of his recent expressions of remorse and contrition. I do not, however, disregard them entirely. They are entitled to be afforded some weight. In addition, in the course of the interviews with both Dr Furst and Ms Robilliard, I accept that the offender made no attempt to minimise or rationalise the seriousness of his offending and that he has gained some insight into the catastrophic impact of his use of prohibited drugs, an addiction that had progressively consumed his life and which I consider to be the dominant environmental factor involved in the death of this child.

1. The offender has expressed a willingness to engage in drug and alcohol counselling while in custody, and welcomes participation in a structured rehabilitation program following his release. I note he has actively participated in various rehabilitative programs since his remand almost two years ago.

1. Ms Robilliard concluded that with appropriate rehabilitation and ongoing adherence to his stated goal of abstinence from drugs and alcohol, the offender has good prosects of rehabilitation. Dr Furst considered that the offender has the capacity to remain abstinent from drugs, and to make further positive changes in his life with drug and alcohol counselling and counselling to address his history of childhood sexual abuse. He advised that the offender receive vocational rehabilitation and that his education options be explored whilst in custody to improve his prospects of making the ultimate transition into the community.

1. Although there is some evidence to suggest that because he is to be sentenced for the manslaughter of a child, and the protection afforded prisoners in that category of offender, he will be imprisoned in conditions more onerous than other offenders, I do not consider it is of sufficient weight to ameliorate the sentence to be imposed. There is no evidence to support a finding that he will not have access to prison-based services directed to his rehabilitation in keeping with the programs he has participated in to date.

1. Necessarily, the views of both Dr Furst and Ms Robilliard are predictive. In the relatively drug-free environment of the prison, the capacity of the offender to remain abstinent is untested and will remain untested for some years as he serves the mandatory period in custody that I will impose. I have concluded, however, that he is not without prospects of rehabilitation and that were he to remain drug-free he is unlikely to act violently in the future. These are matters that are entitled to some weight on sentence in his favour. I am conscious, however, that they must not overwhelm the need for general deterrence to be reflected in the sentence to be imposed for what I am satisfied is very grave offending.

1. I have been referred to a schedule of sentences imposed following a plea of guilty to the manslaughter of a child and said by the offender's counsel to bear some similarity to this case (R v Ditfort (Court of Criminal Appeal, 17 March 1992, unreported); R v Bilton [2000] NSWSC 1113; R v Recalde [2000] NSWSC 1247; R v Compton [2008] NSWSC 204; R v Shepherd [2010] NSWSC 154). I note that in Compton Studdert AJ was also referred to many of the same cases as was the Court in Hoerler. In that case, as I have already noted, Spigelman CJ warned against cases used for comparative purposes fixing a tariff as distinct from those cases being some guide referable to which the sentence under consideration should be fixed.

1. I have given consideration to the sentences imposed in other cases from which I have gained some limited assistance. I do not propose to record the facts of those cases or the sentences imposed save as to note some comparable features, namely the fact of drug use precipitating a loss of temper and the infliction of violence causative of death, fatal assaults to a child's head and abdomen, although in each of those cases the level of violence was greater and sustained over a longer period than in this case, and medical attention was either not sought at all or delayed. In each case, as here, lies were told to conceal guilt (see Shepherd). In none of the cases referred to above did the offender's subjective circumstances figure prominently as warranting any mitigation of sentence, and even less so far as this offender is concerned.

The victim impact statements

1. I have received victim impact statements from Bailey's maternal and paternal grandmothers. They both read their statements in open court. I also received a statement from Bailey's mother and his father.

1. The circumstances in which their son and grandson died has left a permanent scar on them as individuals and as a family, the ongoing effects of which they experience in different ways. I can only hope that these proceedings will bring some sense of closure and that they are able, in time, to resume their lives with the untarnished memory of Bailey as a much loved son and grandson and not how he died. While Bailey's family may expect to see their loss reflected in the sentence to be imposed, that is not the object of sentencing in our system of justice. No sentence of imprisonment, whatever its length, can compensate for the loss of a loved one or even begin to address the grief and sadness that accompanies the loss of the life of a child. I do, however, take the statements of the family into account in the way permitted by law (see MAH v R [2006] NSWCCA 226). I extend my sincere and deepest sympathies to them.

Sentence

1. I was not invited to find special circumstances such as to disturb the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act. After taking into account the need for the sentence in this case to operate as both a general and specific deterrent and to meet the sentencing objectives of retribution and punishment while still affording the offender's rehabilitative prospects as a relatively young man some weight, I impose the following sentence:

Nathan William Forrest, you are convicted of the offence of the manslaughter of Bailey Constable.

I sentence you to imprisonment for 8 years commencing on 7 May 2011, comprised of a non-parole period of 6 years expiring on 6 May 2017, with a balance of term of 2 years expiring on 6 May 2019.

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