R v Hender-Bulman
[2001] VSC 418
•23 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1426 of 2001
| THE QUEEN |
| v |
| ANTHONY PAUL HENDER-BULMAN |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 26 July 2001 | |
DATE OF SENTENCE: | 23 November 2001 | |
CASE MAY BE CITED AS: | R v. Anthony Paul Hender-Bulman | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 418 | |
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Manslaughter – Sentence – Shaking of baby – Gross Negligence – Multiple mitigating personal circumstances – Sentence of 5 years with a non-parole period of 3 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | Office of Public Prosecutions |
| For the Accused | Mr P. Morrissey | Brendan Wilkinson |
HIS HONOUR:
You have pleaded guilty to manslaughter. You killed Nathan Tomlinson on 6 May 2000. Nathan Tomlinson was then 3½ months old. He was born on 17 January 2000. You were his father. His mother was Nicola Tomlinson. You had met Nicola in March 1999. She became pregnant not long after you met. She lived with her family until some weeks after Nathan was born. Then you and she and Nathan lived in a rented house in Rowville.
On the evening of 5 May 2000, you were at that house. Nicola fed Nathan, then put him down in his cot in the main bedroom. You were working on a stereo and its speakers in another room. Nicola joined you. There was an argument about your inability to get a job. The argument left you depressed and angry. It seems that you were not angry with her, but with the world at large. Nicola fell asleep on a couch in that room.
Some time after midnight, Nathan woke up and started crying. You went to him and picked him up. You were still angry. You shook him to quieten him down. You were feeling confused. You shook him for a couple of minutes. I cannot say precisely what more you did than shake him. But it was enough to cause very serious head and body injuries. Whatever you did, Nathan cried no more, because your actions had caused his death.
I have said that I could not say more precisely what you did. In part that is because I do not accept certain aspects of what you said later as to what had happened when you tried to stop Nathan crying. Dr Bourke found at the autopsy that Nathan had suffered a fractured skull, 3 fractured ribs and several bruises. Those findings cannot be reconciled with your accounts to others. Those accounts included some inconsistencies and some naive comments, which were part suggestion, part question. The comments included that perhaps you might have had a fit, or a flashback, or perhaps the cat might have played a role. The number and character of those matters tended to indicate that you yourself did not understand how you had come to do what you had done, and were searching for an explanation.
Your actions in shaking Nathan and more were grossly negligent. A 3 month old child is an extremely vulnerable victim. Your actions were seriously criminally wrong. If it were not for the combination of personal circumstances to which I will turn in detail later, I would have had to impose both a long prison term and a long non-parole period.
I have read carefully the victim impact statements written by Nicola, Yvonne, Claire and Keith Tomlinson. Just reading the statements is a moving experience. Your actions have caused great trauma to Nicola and her family. All of them have been devastated by the death of Nathan. They had no reason to believe that you would be otherwise than a gentle, caring father.
I turn now to your personal circumstances. You were born in February 1980. Your mother is intellectually handicapped to a significant extent. Your natural father, Paul Hender suffered from schizophrenia. More troubling than his schizophrenia was that he had a propensity for violence. At times he was very violent in dealing with you. His propensity for violence led to your mother leaving him, when you were aged 6.
When you were aged 9, you mother married Graham Bulman. Unfortunately, Graham Bulman is also intellectually handicapped. Much more unfortunate were his attitudes and actions on sexual matters. He sexually abused you, seriously and often for over 3 years, starting when you were aged 9. Further, he forced your mother to be a party to the abuse. The particularly revolting details are set out in the comments of Judge Smith who had to sentence Graham Bulman in February 1994.
Despite the abuse, your mother chose not to leave Graham Bulman. That choice meant that she could not look after you. You spent the years that followed in the wilderness of departmental supervision. You were moved from one institution to another, from one school to another. Not surprisingly, there were problems with your education, and with how you were treated by other students. The problem of moving schools came on top of your being mildly intellectually handicapped. There was the further difficulty that you have an impaired capacity to communicate. Your speech can be difficult to understand.
Not surprisingly, there were incidents of your misbehaving at school and after leaving school. More than one such incident has led to your appearing in court. The light sentences imposed and the information given to me about the circumstances are indicative of a low level of criminality. It seems that you are prone on some occasions to impetuousness, and on other occasions to following the bad example of others.
When you were aged 14, you were diagnosed as suffering from epilepsy. Since then you have been obliged to take appropriate medication for the epilepsy.
I noted earlier that you have a mild intellectual disability. I have noted that Dr Lester Walton considers that there is a real prospect of the disability being more than mild. But what troubles him more was that that disability came on top of the major emotional problems which were a legacy of your traumatic upbringing. In his view, the combination has markedly limited your capacity to deal with a situation of crisis in a way that most members of the community would treat as a normal way.
I accept that you were particularly poorly equipped to handle the responsibilities of fatherhood. Every father, every carer, everybody should be aware that one should never ever shake a baby or small child. You lacked that awareness.
I have painted a black picture. I would not want to give the impression that there has been no light in the darkness. There have been areas where relatives or friends have brought light. I was impressed by the way in which your uncle Simon McKeon and his wife, Jane, despite other commitments including their own four sons, have tried over a long period, and in many ways, to improve your life. Through the McKeons, it was possible for you to spend time with the Poatina organisation in Tasmania in your late teenage years, where you were able to acquire some important coping skills. I accept that it is the deficits in skills, rather than an unwillingness to work, that has meant that you do not have an impressive work history. The period of your contact with the Tomlinson family was clearly beneficial for you, although your actions ultimately left them devastated. Many witnesses from diverse backgrounds gave evidence on the plea. It was apparent from what they said, that the influence of the positive people in your life has meant that you have many endearing qualities.
There are an extremely high number of mitigating factors operating in your favour. They include your youth, your deprived background, your disabilities, and your plea of guilty. Your disabilities make you an inappropriate vehicle for general deterrence. With your disabilities, prison would be extremely hard. I also accept that, in more ways than one, you have shown remorse for the actions that led to the death of your son.
Because of the seriousness of the offending behaviour for which you have been convicted, I have concluded that I should impose a significant prison sentence. But my conclusion is qualified in that I have accepted the good sense of the position adopted by the prosecution that immediate incarceration was not inevitable. I sought a pre-sentence report mainly because it was my preliminary position that close to immediate release on parole would be more likely to provide a better result than would immediate incarceration. The report I have received from Eugene Docherty has provided sound support for that position in its conclusions and in the grounds for those conclusions.
I propose to sentence you to a long period of imprisonment, namely 5 years. I also propose to fix a very short non-parole period. This course is one not often taken. I am satisfied that it is appropriate given the exceptional considerations applying here. You have spent 3 days in custody when appearing in this court. I propose to declare that that period shall qualify as the non-parole period. The Adult Parole Board is meeting today. It will be for the Board to determine whether you will be granted parole – and subject to what conditions. You will only be granted parole if you accept those conditions. The basic conditions would include regular attendance on a community corrections officer who could be asked to report regularly to the Board. Specific conditions can be tailored by the Board to address your particular situation, as to counselling and programs to be undertaken, or otherwise. Conditions can be varied readily if necessary. You will remain under the supervision of the Board, and more directly under a community corrections officer, for the period of the sentence. Breach of the conditions can lead to cancellation of the parole by the Board. In such circumstances, the whole term of 5 years could have to be served in prison.
I have already arranged for a copy of certain documents to be provided to the Parole Board. I also direct now that a transcript of what I have said this morning be provided to the Board. You will remain in custody in this building until the Board has made a decision today.
I attend to the formalities. I declare that the period of pre-sentence detention is 3 days. I direct that that be entered in the records of the court. I impose a sentence of 5 years imprisonment. I fix a non parole period of 3 days.
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