R v Hooper
[2023] VSC 398
•11 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0283
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BRADLEY HOOPER | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 22 and 23 March 2023 |
DATE OF SENTENCE: | 11 July 2023 |
DATE OF REVISED REASONS: | 12 July 2023 |
CASE MAY BE CITED AS: | R v Hooper |
MEDIUM NEUTRAL CITATION: | [2023] VSC 398 |
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CRIMINAL LAW – Sentence – Child homicide – Actual circumstances of offending unknown – Whether offender committed uncharged acts – Contextual significance – Plea of guilty – Positive prospects of rehabilitation – No prior convictions – Consideration of principles in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 – Sentenced to 11 years’ imprisonment with a non-parole period of 8 years and 6 months – Sections 5(2H) and 5(2HC) Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Clancy | Office of Public Prosecutions |
| For the Accused | Ms H Anderson | Gallant Law |
HIS HONOUR:
Introduction
Bradley Hooper, on 31 August 2021, your eight-week-old son Alex died as a result of neurological injuries that you admit were inflicted by you in shaking the child. That incident occurred on or about Sunday 29 August 2021.
On 10 August 2022, you were charged with the offence of child homicide pursuant to s 5A of the Crimes Act 1958. On 2 November 2022, you pleaded guilty to that offence at a committal mention in the Magistrates’ Court. You were then arraigned in this Court on 10 November 2022 and again pleaded guilty to the one count on the indictment of child homicide. Child homicide is a category 2 offence under the Sentencing Act 1991. I will return to the consequences of that in due course.
The prosecution accepts your plea of guilty to child homicide was made at the earliest possible opportunity.
On 22 and 23 March 2023, in this Court, I heard an opening on behalf of the prosecution, a victim impact statement from the mother of the deceased child, as well as submissions from counsel on your behalf and the prosecutor as to the sentence that should be imposed on you.
The maximum penalty for child homicide pursuant to s 5A of the Crimes Act 1958 is 25 years’ imprisonment, increased from 20 years in 2020.
It is now my responsibility to sentence you for this offence.
Circumstances of offending
Background
Your son, Alex, was born on 2 July 2021 at the Royal Women’s Hospital by caesarean section. He was a healthy baby at birth. There are two older brothers. You and Alex’s mother had married in 2015 and ran a family business together concerned with furnishing properties listed for sale.
The method of birth by emergency caesarean section was unexpected and it meant that Alex’s mother required a lengthier recovery than was planned. That in turn meant that you were required to shoulder more of the burden for looking after the children, including Alex. So far as Alex was concerned that included nappy and clothing changes, bathing and feeding. This was also occurring during the difficulties created by the Covid-19 pandemic.
Shortly after his birth on 2 July 2021, Alex presented for medical treatment on several occasions. They were as follows:
(a) On 11 July 2021, Alex was taken to the Royal Children’s Hospital with redness and grazing to his nose. He was diagnosed with chafing or epidermolysis bullosa and was prescribed an antibiotic cream. This injury was later considered contact with a rough object.
(b) On 14 July 2021, he was taken to the Northern Hospital with bruising to the pubic region and to both sides of the scrotum, although the right side was significantly more swollen. He was transported to the Royal Children’s Hospital where an ultrasound showed no signs of testicular torsion. He also presented with respiratory symptoms and was diagnosed with a viral chest infection.
(c) On 12 August 2021, he was taken via ambulance to the Northern Hospital. About 30 seconds after you had taken Alex for a bath, his mother entered the room and you immediately removed Alex from the bath. Alex’s mother saw that Alex was blue, floppy and unresponsive, and called for an ambulance. He then became pale and started breathing with shallow breaths. Alex’s mother reported that he was breathing normally after about 15 minutes. A chest X-Ray revealed that Alex had bilateral rib fractures of varying ages. Following this incident, Alex’s mother requested that you purchase an apnoea alarm to place under Alex’s bed to detect his movement and breathing.
(d) On 24 August 2021, you noticed a hole under Alex’s tongue and after advice from his general practitioner on 25 August 2021, and the Northern Hospital telehealth service on 28 August 2021, a paediatric appointment was scheduled. After his death, the cause of this injury was determined to be blunt force trauma.
Alex’s mother observed several scratches on his face, neck and head which occurred while Alex was in your care. No medical attention was sought for these injuries. Instead, she told you to be more careful.
On 26 August 2021, you worked during the day and Alex’s grandmother had been helping to look after your children. She ended up staying the night at your house. During the evening, Alex’s mother observed you get angry at Alex’s brothers when their grandmother accidentally dropped a plate. The children did not settle until after midnight.
Sudden respiratory and cardiac collapse
On 28 August 2021, your family spent the day together and, in the evening, watched a movie on television. Alex’s mother went to bed early and you put the children to bed at approximately 9.00pm. While Alex’s mother did not have any concerns about Alex’s general health or wellbeing, she had observed him to be ‘slightly off’ in the previous 7-10 days, which she put down to him having a sore throat.
At about 5.20am on 29 August 2021, Alex’s mother was awoken by the sound of the apnoea alarm. You yelled to her ‘[redacted], he’s in the bed’ which she understood meant that this was not a false alarm. You picked up Alex from the bassinet and took him to the next room and placed him on the change table. Alex’s mother followed, and saw that Alex was blue and not breathing. She went to retrieve her phone from the bedroom to call Triple Zero.
You had not yet commenced CPR but yelled at Alex’s mother to call an ambulance. She was panicking and was unable to unlock her phone, so she gave her phone to you and told you to call Triple Zero while she started CPR. You called for an ambulance at approximately 5.21am.
Paramedics arrived at 5.34am and took over care of Alex. Return of circulation was documented at 5.58am. Alex was intubated and transported to the Northern Hospital, where he was deemed critically ill. A chest X-Ray was performed, demonstrating multiple healing posterior rib fractures. Due to Alex’s critical state, he was transferred to the Royal Children’s Hospital where a CT scan of his brain was performed. This demonstrated radiological features suggesting a hypoxic ischemic brain injury (lack of oxygen/blood supply to the brain) and bleeding to both sides of the brain.
Doctors asked you if there was anything that could have caused these injuries. You stated that you had dropped Alex from the change table two weeks before because you did not have a good enough grip on him. As a result, you said, Alex fell onto his side and cried for about 10-15 seconds. You also said that you did not think anything of it at the time. Alex’s mother was not aware of this incident. You did not tell anyone that you had shaken the child.
Medical examination
An assessment of Alex by the Victorian Forensic Paediatric Medical Service (‘VFPMS’) was deemed necessary because doctors believed that the combination of his injuries raised concerns about them being non-accidental. A limited physical examination was conducted by Dr Joanna Tully, who is employed as Deputy Director of the VFPMS at the Royal Children's Hospital and Monash Children’s Hospital.
Dr Tully’s examination was conducted at 4.30pm on 29 August 2021 and revealed the following skin markings:
1.On the top of his head was a 0.5cm by 0.5cm scab;
2.On the left side of his forehead was discolouration, likely a bruise;
3.At the base of his left nostril was a small area of inflammation with overlying skin loss;
4.On the outside of his left ear was a 0.5 cm area of discolouration, possibly a bruise;
5.On his lower right check were several red blanching marks, one of which appeared to have a small degree of loss of surface skin integrity;
6.On the right side of his neck, just under his chin, was a 0.5cm scratch;
7.The piece of tissue connecting the underside of his tongue to the floor of his mouth was missing and there was a horizontal line of bright red mucosa running along the base of the underside of his tongue which expanded at the left end, where the margins appeared to be surrounded by white slough tissue; and
8.Underneath his left arm, in line with his left nipple, was a small 0.5cm area of discolouration which appeared to be a bruise.[1]
[1]Report of Dr Joanna Tully, dated 28 September 2021, 11-12 (Depositions, 101-2).
An eye examination was performed which revealed several (less than 5) intraretinal haemorrhages in his right eye.
In the early hours of 30 August 2021, an MRI was performed on Alex’s brain and spine, which suggested a catastrophic brain injury with the absence of blood flow to vital brain structures. His condition was not compatible with life, and a decision was made to withdraw his life support the next day.
At 3.21pm on 31 August 2021, Alex’s life support was removed.
Dr Joanne Ho, who was at the time a trainee forensic pathologist employed at the Victorian Institute of Forensic Medicine, conducted a post-mortem examination the following day, 1 September 2021. Her examination found that Alex was a normally developed and well-nourished male infant with no underlying medical issues. She determined that the cause of Alex’s death was because of head injuries. A summary of her findings are as follows: [2]
[2]Report of Dr Joanne Ho, dated 1 August 2022 (Depositions, 61).
In summary, the autopsy findings demonstrated multiple episodes of traumatic injury:
a) There were subdural haemorrhages and there was hypoxic ischaemic encephalopathy, which are manifestations of traumatic head injury in infants. They are however not specific for traumatic head injury. Whilst optic nerve sheath haemorrhages were present, retinal haemorrhages were not. In this instance, there was also subarachnoid haemorrhage and histological evidence of bridging vein injury. Whether or not these changes can be produced by pure shaking injury without impact is subject to controversy. In this case there was incontrovertible evidence of impact to the head, i.e. traumatic head injury.
b) There were haemorrhages in the cervical nerve roots. They have been associated with shaking type injury, but there is little data around the specificity of cervical nerve root haemorrhages for shaking type injury.
c) There were metaphyseal corner fractures in keeping with episodes of shaking.
d) There was evidence of previous blunt force abdominal injury.
e) There was extensive and severe skeletal injury due to blunt force trauma.
f) There was evidence of previous oral injury.
In conclusion, there were multiple and extensive traumatic injuries in this 8-week-old infant on multiple planes of the body. The combination of autopsy findings provides very strong support for the hypothesis that the injuries are caused by non-accidental trauma, as opposed to the hypothesis that the injuries are caused by accidental trauma. The combination of these injuries is not consistent with a single event. However, the total number of events cannot be estimated with any certainty.
Dr Tully provided a detailed report in relation to the VFPMS assessment. She did not have access to the autopsy at the time of writing. Her findings are summarised as follows:
In association with this presentation [Alex] was found to have a severe hypoxic injury to his brain, intracranial haemorrhages (subdural and subarachnoid), parenchymal brain injury, bleeding around his spinal cord, retinal haemorrhages in one eye, possible soft tissue injury to his neck, several areas of bruising, a torn frenulum, multiple rib fractures in varying stages of healing and several fractures of the metaphyses of his long bones.
The combination of these findings indicates that [Alex] has suffered inflicted injury on a number of occasions as result of an adult handling him in an inappropriate manner, including by violent shaking with or without associated impact against a firm or soft surface. [Alex’s] father stated that he shook [Alex] approximately 48 hours before [Alex] collapsed in cardiorespiratory arrest. Although this could account for many of the injuries identified during this VFPMS assessment, [Alex’s] clinical presentation with a sudden catastrophic collapse following waking for a feed and appearing his normal self, suggests that an additional intervening event occurred around this time.
[Alex] had presented for medical care on a number of occasions prior to his death. [Alex] had sustained abrasions to his nose, genital bruising, a BRUE and bleeding from his mouth. Multiple rib fractures were present at the time of these presentations, but these fractures were only diagnosed when radiologists subsequently re-interpreted the chest X-rays. In an infant of [Alex’s] age these injuries and presentations generate a very high level of concern about inflicted mechanisms for his injuries. The different stages of healing rib fractures identified on chest x-rays taken when [Alex] was 2 weeks and 6 weeks of age, suggests multiple episodes of trauma to [Alex’s] ribs.
[Alex] sustained multiple injuries during his life including a pelvic fracture and possible intraabdominal injuries. Not all these injuries can be explained by shaking, and the precise mechanism by which some of the injuries occurred has not been determined.
There is currently no evidence of any naturally occurring medical condition that would reasonably explain [Alex’s] clinical presentation of the constellation of his injuries.[3]
[3]Report of Dr Joanna Tully, dated 28 September 2021 (Depositions, 140).
Medical interview
On 29 August 2021, you were interviewed by Dr Tully. You told her that two weeks prior, you had dropped Alex from approximately 1.5 metres onto a carpeted floor. You said that Alex had struck his head, cried for a short period of time, and then returned to his normal self. You repeatedly told her that you were exhausted, sleep deprived and that you were ‘not thinking straight’. You said that you might have been a ‘bit rough’ with Alex at times, which included ‘bicycling’ Alex’s legs to relieve wind. You provided no explanation for the marks on Alex’s nose, the bruising to his genital area or the injury under his tongue. At that time, you denied shaking Alex.
Police interviews and investigation
At about 7.30pm on 29 August 2021, you were arrested and interviewed by police. In addition to what you had earlier told Dr Tully, you told police that you had accidentally scratched Alex’s face a couple of days prior when you were putting moisturiser on his face, and his neck on another occasion. You also told police that when you were feeding Alex, his brother had thrown a toy train which hit Alex in the face, leaving a small bruise on his cheek. You were released without charge.
At approximately 8.07am on 30 August 2021, you called Alex’s mother. She asked you if you had shaken Alex, and after a long pause, you said ‘Yes, I did. But only a little.’ You denied causing the injuries to Alex’s ribs. You then told Alex’s mother that you would call the police and tell them what you did. You called the police shortly after and said that you had shaken Alex ‘a little bit, not profusely, not hard but I did shake him a little bit.’[4]
[4]Transcript of recorded telephone conversation between Mr Hooper and DSC Stanfield (Depositions, 1458).
On 30 August 2021, you participated in a second police interview. You said that in the early hours of 27 August 2021, you got frustrated when Alex would not take his bottle and that you shook him five or six times in frustration. When asked how hard you shook Alex, you said, ‘it wasn’t vicious’. You said that after you shook Alex, he spat up a bit of vomit but there appeared to be no change in him. You said that after you put him back to bed, you researched on your phone for signs of brain damage in babies that had been shaken, and that you did not tell anyone about what had happened.
You told police that this was the only time you had shaken Alex. You said that you were 95 per cent sure that you did not shake him rapidly, but that when you did shake him, Alex’s head had snapped back and forth a couple of times. You said that no further traumatic events took place after this incident.
Your phone was seized by police. Analysis of your phone revealed that you had conducted the following internet searches in the hours after Alex’s collapse on 29 August 2021:
a)How long till a baby gets brain damage (between 10:10am and 11:34am);
b)How long can a baby go without oxygen before brain damage (10:55am);
c)Signs of brain bleed in toddler after fall (10:09am); and
d)How long can a baby go without oxygen before brain damage (5:57am).[5]
[5]Depositions, 1802-3201.
You had also researched multiple medical ailments throughout Alex’s life. The prosecution relied on the following of your searches:
a)Split under baby tongue (28/08/2021 at 1:08pm);
b)Baby has runny nose (28/08/2021 at 8:51am);
c)Blood in baby snot (28/08/2021 at 5:18am);
d)Is it normal for babys to grunt while tryingtogo to sleep (28/08/2021 at 5:16am);
e)I accidently scratched my babys face (25/08/2021 between 8:09 and 9:00pm);
f)My baby threw up after feed (25/08/2021 between 3:10 and 4:05am);
g)Baby has hile {hole} under tongue (24/08/2021 between 9:03am and 9:52am);
h)Baby has hole under tongue any ideas (28/38/2021 at 1:37am);
i)My baby wont take bottle (24/08/2021 at 1:28am);
j)Internal stomach bleeding symptoms (23/08/2021 at 2:04am);
k)Baby doesn’t cry loud and Sids (21/08/2021 at 2:27pm and 2:40pm);
l)Red spot on lip no blister baby (20/08/2021 at 10:44pm);
m)Can a newborn voice box get damaged (19/08/2021 at 5:49pm);
n)Can chocking cause loss of voice (19/8/2021 at 9:44am);
o)Baby not crying loudly Australia (19/8/2021 at 9:24am);
p)How much do newborns remember (19/8/2021 at 9:56pm);
q)What can cause a baby to los consciousnessfast au (13/8/2021 from 5:21am);
r)Brue baby (12/8/2021 at 7:38pm);
s)Baby stop breathing in bath (12/8/2021 at 7:29pm);
t)My newborn has suspicious scratches (11/8/2021 at 8:30am);
u)My 2 year old keeps hitting the newborn (11/8/2021 at 8:22am);
v)Voice boxnewborns’ and ways.tp damage.voice.box (10/8/2021 at 6:18 and 6:20am);
w)Baby with cold rapid breathing (31/7/2021 at 5:34pm);
x)Brain damage signs in newborn (27/7/2021 at 1:14pm);
y)Blood in white of eye of newborn baby (26/7/2021 at 10:19am);
z)Newborn bruises (8/7/2021 at 8:45pm); and
aa)How long can a newborn take to suffocate (5/7/2021 at 5:06pm).[6]
[6]Ibid.
You were charged on 10 August 2022 and granted bail. I revoked your bail at the conclusion of the plea hearing on 23 March 2023.
On those facts, the issue arises as to whether you are to be sentenced on the basis that the only action of yours that caused injury and ultimately death to the child was the shaking you later admitted to or whether you also are responsible for other serious injuries, such as the fractures that have been identified. I will return to this later in these reasons but I indicate now that I am satisfied you were the cause of the non-accidental fractures that this child suffered on occasions other than when you shook him.
Victim impact statement
During the hearing on 22 March 2023, Alex’s mother read out a lengthy victim impact statement which appeared to be extraordinarily difficult for her to do. Her words were emotional and moving. A significant additional punishment for you independently of the sentence I will shortly impose on you is the knowledge that the rest of Alex’s family will almost certainly never forgive you for what has occurred. It is enough to say that the effects of Alex’s death and, in particular, the circumstances in which his death was caused, have been distressing, devastating and life-changing for Alex’s mother and for Alex’s two brothers. It has affected their mental health. These events will be with them for the rest of their lives. I have taken this statement into account in concluding the sentence to be imposed on you as I am required to do by s 5(2)(daa) of the Sentencing Act 1991.
Defence submissions
On the hearing of the plea you were represented by Ms Heather Anderson of counsel. She produced a number of documents on your behalf by way of mitigation:
(a) defence plea submissions and addendum plea submissions;
(b) letter from Dr Tanja Mrdja-Getlinger dated 23 February 2023;
(c) letter from Nexus Primary Health dated 9 March 2023;
(d) letter from John Bacash dated 6 March 2023;
(e) report from Dr Prashant Pandurangi dated 8 March 2023;
(f) discharge Summary from Northern Health dated 4 March 2023; and
(g) email of Dr Prashant Pandurangi dated 22 March 2023.
Personal circumstances
The evidentiary material produced indicates that you are 34 years of age and have no prior convictions of any kind. You do have an unfortunate background. You were put into foster care between the ages of one and two as your parents were deemed unfit to care for you. You moved between about 13 foster homes before being permanently cared for and adopted at age four. You were physically abused by different foster parents, including an adoptive father who physically and sexually abused you. You have four biological siblings. Another biological sibling died at birth. You are close to your brother, Luke, who you have lived with and together you cared for Luke’s 10-year-old son.
You attended school until year 12 but did not complete VCE. You struggled at school with bullying due to being adopted and in foster homes. In secondary school, you were physically bullied. While you had friends at school, you felt alone. You enjoyed sport and music.
After the completion of your education, you worked at Bunnings Warehouse for about seven years. You also completed a diploma in financial planning in 2018 and are a certified mortgage broker. You have worked in two finance agencies, one of which was owned by Alex’s mother.
You met Alex’s mother in 2011 or 2012 and the relationship became romantic in September 2013. You moved in together after about six months and were married in 2015. She was working as a financial advisor and encouraged you to do the same. Your first child was born in 2018 and the second in November 2019, both boys.
In 2019, your partner’s father became unwell and so she stopped working to care for him. The result was that you became the sole provider for the family and primary carer of the young children. Your family moved into Alex’s grandparents’ home and Alex’s grandfather passed away some time later. Your partner then started her own business furnishing and styling houses for sale, and you joined this business at her request.
Following the death of Alex, you have no contact with Alex’s two brothers. That was the case before you went into custody and the prospects of contact from here on are obviously limited. You recently underwent major surgery on 3 March 2023, which involved an appendectomy following appendicitis secondary to a pre-existing health condition, being Meckle’s diverticulum.
Mental health conditions and Verdins
You are suffering from mental health conditions, some or all of which derive from your background.
Your counsel submitted that the principles that have evolved from the judgment of the Court of Appeal in Verdins[7] and subsequently, apply to your offending such as to reduce your moral culpability and the significance of general and specific deterrence in sentencing you. It was argued that at the time you committed this offence you were impaired by untreated mental health conditions in combination with other factors. The diagnoses that have been provided do not appear to be in contention and, at a minimum, are to be taken into account as part of your personal circumstances.
[7]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 (‘Verdins’).
There are six principles that arise from the judgments beginning with and evolving from Verdins. It is argued on your behalf they all apply to you. They are that, for sentencing purposes, a mental impairment:
1 may reduce your moral culpability and so affect what is considered to be a just punishment and lessen the need for denunciation;
2 may have a bearing on the kind of sentence that is imposed and the conditions under which it should be served;
3 means that general deterrence may be moderated or eliminated as a consideration depending on the nature and severity of your symptoms, and the effect of their impairment at the time of offending, sentence, or both;
4 means that specific deterrence may be similarly moderated or eliminated in the same circumstances;
5 that exists at the time of sentencing, or its reasonably foreseeable reoccurrence, may mean that a specific sentence may weigh more heavily on you than it would on a person in normal health; and
6 may mean that if there is a serious risk that imprisonment will have a significantly adverse impact on the offender’s mental health, this will be a mitigating factor.
Though not conceding principles 1 to 4 and 6, the prosecution do concede that the conditions from which you suffer will make custody more burdensome for you than a person who does not have those conditions.
Dr Prashant Pandurangi is a forensic psychiatrist and he assessed you in January 2023. He characterised your childhood as being one with disadvantage and neglect. He opined that issues throughout your childhood have had an impact on the development of your personality characteristics including ‘a lack of sense of self and deficits in interpersonal functioning’ with these characteristics leading to ‘problems in emotional regulation or processing of underlying distress, a poor self-worth, problems in managing conflicts in relationships and a tendency to use maladaptive strategies to cope with stress or difficult situations.’[8] He also diagnosed you with Complex PTSD and Recurrent Depressive Disorder, with ongoing suicidal ideas.
[8]Report of Dr Prashant Pandurangi, dated 8 March 2023 [62].
I take these matters into account and reliance was also placed on them pursuant to the principles flowing from Bugmy.[9] Those principles require that your circumstances and experience during your childhood and formative years must be considered in sentencing because the effects of social disadvantage, which you definitely had, do not diminish with time. Such effects are likely to have profound and lasting consequences and can explain, though not excuse, the offending. Taking lifelong damage that is the result of your childhood exposure to violence, abuse, or neglect into account when sentencing you is ‘the mark of a humane society…’.[10] I am frankly not sure whether your background fully explains your conduct, but it may to some degree.
[9]Bugmy v R (2013) 249 CLR 571 (‘Bugmy’).
[10]DPP v Hermann [2021] VSCA 160 [46].
So far as the specific application of the Verdins principles are concerned, Dr Pandurangi opines that if your account of what occurred were to be accepted, then at the time there were ‘several distal and proximal factors which are relevant and contribute to the offending’ including ‘underlying untreated mental health conditions including depressive illness and effects of post-traumatic stress disorder’ and ‘stress and exhaustion from the daily routines, lack of sleep and his state of mind at the time, in my view, provides some explanation into the elements that combined which resulted in his conduct.’[11] (Emphasis added in italics).
[11]Ibid [70].
As I observed during discussion,[12] given the increasingly binary nature of the application of the Verdins principles, this is not the strongest connection, but these are surely matters of degree. I accept that your mental state is capable of providing a contributory explanation for what you did. For a start, it means that your conduct is not to be classed as gratuitously violent as occurs in some cases. Rather, I consider your conduct was the product of frustration or exasperation and not accompanied by any consciously formed intention to cause harm to your child.
[12]Transcript of Proceedings, R v Hooper (Supreme Court of Victoria, S ECR 2022 0283, Lasry J, 22 March 2023) 68.
On this topic of the connection between your mental state and your offending, in an email dated 22 March 2023, Dr Pandurangi sought to clarify this part of his written report. He wrote:
In terms of the nature of the connection between the underlying mental health conditions (recurrent depressive disorder and complex PTSD), in my opinion there is an indirect connection with the offending. In other words, the mental health conditions made him more vulnerable, to make calm and reasoned decisions. There is no indication that the mental health conditions are causally (or directly) connected with the offending.
...
His untreated mental health conditions would have significantly affected his ability to cope with increasing stressors, which existed in the lead up to the offending, and set up a vicious cycle of further worsening of the conditions. He describes worsening of his mood symptoms, which his ex-wife suspects that he may be experiencing.
As noted in (1) his mental health conditions would have impacted his ability to deal or cope with ongoing stress and affect his decision making. Although the conditions are not causally connected to the offending, they would have significantly contributed to the myriad of issues he was experiencing at the time (his decision making is impacted by several factors — which are exhaustion, lack of sleep and underlying mental health conditions, although it would be difficult to attribute a specific weight or percentage to each of these factors). So, the mental health conditions are probably necessary, but not sufficient to explain the offending.[13]
[13]Email of Dr Pandurangi, dated 22 March 2023, 1.
Your counsel submitted that Dr Pandurangi’s report and subsequent email demonstrated that a realistic connection existed between your mental health conditions and the offending, which in turn enlivened limbs 1 to 4 enunciated in Verdins.
In response, the prosecution argued that an indirect connection between your mental health conditions and the offending is not a realistic connection. They also argued that there is no realistic connection which would reduce your moral culpability. In relation to the proximate factors outlined by Dr Pandurangi, the prosecution relied on the following passage from the Court of Appeal in Staples v The Queen:[14]
The courts are well aware of the difficulties and stresses involved in parenting young children. Nevertheless, parenthood involves particular responsibilities. The appellant’s violent conduct towards Flynn, involving, it would seem, violent forceful shaking with associated impact against a firm surface, violated the fundamental norms of proper parental care required of him.[15]
[14][2021] VSCA 307.
[15]Ibid [74].
True as that is, I consider your mental state to some degree reduced your ability to exercise appropriate judgment at the time and make calm and rational choices. It also interfered with your ability to think clearly or appreciate the wrongfulness of your conduct. The effect of an impairment on moral culpability is a matter of degree. I have considered the gravity of your offending and with the assistance of the expert evidence I consider that your impairment made some contribution to what you did in a way that makes you to some degree ‘less blameworthy’ albeit only in a limited way.
To the extent that your impairment is to moderate the weight placed on specific deterrence, I consider it does have that effect. The evidence is that you are a low risk of future violence and I frankly think that risk is very low. Nonetheless it is important that you continue to understand the consequences of extremely serious offending like this.
In relation to the principle of general deterrence, I consider that as a sentencing factor it is only slightly diminished. In my view it is still significant particularly in a case like this where an entirely dependent infant is involved. The community must continue to understand that regardless of the pressures on a parent, including pressures arising from mental health problems, a child of Alex’s age remains both vulnerable and dependent and the effort to avoid any form of violent behaviour must always be made and the welfare of the child must remain the paramount state of mind.
In his email, Dr Pandurangi also wrote:
His underlying mental health conditions including depressive disorder and PTSD are likely to render his time in custody, more onerous compared to others who do not suffer from these conditions. He is likely to receive regular mental health follow-up and his mental state should be monitored.
He will be vulnerable in a stressful prison setting, especially given the nature of his offending which is likely to affect his placement. Although he is likely to receive ongoing mental health care in form of reviews and psychotropic medications, he is unlikely to receive the same level of psychological treatment, he is currently receiving in the community. In absence of the psychological treatment, in the stressful prison environment, his mental health would potentially deteriorate. He continues to experience suicidal ideas, which during periods of deterioration in mental health needs to be closely monitored.[16]
[16]Email of Dr Pandurangi, dated 23 March 2023, 2.
Your counsel argued that the above demonstrates that your time in custody will be more burdensome due to the nature of your offending. This was not contested by the prosecution. I have taken this into account.
Your counsel also argued that Dr Pandurangi’s evidence enlivens the sixth limb of Verdins. That is, it was submitted that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. The prosecution disputed this, arguing that the evidence does not suggest that your mental health is likely to suffer to the requisite level.
To find that this principle applies in your favour, I must determine that the deterioration to your mental health in prison be greater than the mental deterioration that imprisonment generally causes any person to suffer.[17] Dr Pandurangi’s evidence is that you will not receive the same level of psychological treatment in prison as you would in the community. However, he assessed the risk that your mental health would deteriorate in prison as ‘potential’. He did not put the risk any higher. For this reason, I do not conclude that there is a serious risk that prison will have a significantly adverse impact on your mental health.
[17]R v Howell (2006) 16 VR 349 [25].
Your counsel argued that your sentence should involve a combination of a community correction order and a term of imprisonment. Section 5(2H) of the Sentencing Act 1991 (‘the Act’) relevantly provides:
In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless —
…
(c) the offender proves on the balance of probabilities that—
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment;
…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence imposed in addition to making a community correction order in accordance with section 44).
Your counsel submitted that either ss (c)(ii) or (e) of s 5(2H) of the Act apply.
In relation to s 5(2H)(c)(ii) of the Act, your counsel relied on the part of Dr Pandurangi’s report which is extracted at paragraph 49 of these reasons, particularly the first sentence. The prosecution disputed that this evidence is a proper basis for a finding that you would be subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
In relation to 5(2H)(e) of the Act, your counsel contended that the following combination of factors amounted to ‘substantial and compelling reasons that are exceptional and rare’:
(a) your cooperation with police;
(b) your remorse (as demonstrated by Dr Pandurangi’s report, rather than by your plea of guilty);
(c) your mental health issues, as they relate at the time of the offending and your willingness to seek treatment for them;
(d) your lack of prior convictions and your low risk of reoffending;
(e) your childhood disadvantage;
(f) the family support you have;
(g) that you were the primary caregiver for your children including Alex at the time of the offending; and
(h) your compliance on bail and that you did not offend whilst on bail.
In response, the prosecution directed me towards s 5(2HC) of the Act, which provides:
In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
The prosecution submitted that these circumstances were not substantial or compelling.
I am not convinced that, because of your impairment, your burden would be substantially and materially greater than the ordinary burden faced by other prisoners. Further, I do not consider the factors you rely upon in respect of s 5(2H)(e) to be substantial or compelling.
In DPP v Browne,[18] a case concerning charges of dangerous driving causing death and reckless conduct placing a person in danger of serious injury, the Court of Appeal considered whether the offender’s ‘very powerful mitigating factor[s]’[19] warranted a non-custodial sentence. Those factors included a plea of guilty, impaired mental functioning (PTSD), overwhelming remorse demonstrated by immediate admissions to police, the moderation of general deterrence and the offender’s relative youth, good character and community involvement.[20] The Court found, having regard to the maximum penalty of 10 years’ imprisonment, that it was not open to impose a community correction order, either in combination or individually.
[18](2023) 103 MVR 226 (‘Browne’).
[19]Ibid [56].
[20]Ibid [53].
As the Court of Appeal makes clear in Browne, the bar is a very high one to overcome in circumstances where the gravity of the offending is serious. While there are some similarities between your factors in mitigation and those in Browne, the maximum penalty you face for child homicide is much higher than the maximum penalties for dangerous driving causing death and reckless conduct placing a person in danger of serious injury.
When your mitigating circumstances are considered in combination with the seriousness of your offending, the maximum penalty and having regard to the considerations in s 5(2HC) of the Act, I do not consider that a combination sentence is appropriate in your case.
Uncharged acts
It is not contested that Alex’s death was caused by forceful shaking and traumatic impact to his head or that you caused this to occur in shaking the child as you have admitted. However, both Dr Ho and Dr Tully found that Alex also suffered from a number of other injuries that were not likely to be sustained through normal handling of a child or natural causes. None of these injuries are the subject of charges against you, or anyone else.
It is submitted by the Crown that you caused the following injuries to Alex:
(a) multiple fractures to the ribs;
(b) multiple fractures to the arms and legs;
(c) fracture to the pelvis;
(d) previous blunt force abdominal injury;
(e) old haemorrhage in the fat surrounding the spinal cord; and
(f) oral injury.
Ms Clancy submitted that it was open to me to be satisfied that you caused these injuries to Alex because:
(a) the evidence demonstrates that only adult caregivers could have inflicted those injuries and that the only adult caregivers with access to Alex were you, Alex’s mother, and Alex’s grandmother;
(b) none of the medical practitioners were cross-examined about their conclusions on the plea and therefore their evidence was not challenged; and
(c) your internet searches showed that you had an appreciation that serious injuries were possible as a result from harming Alex.
No witnesses were called by either party on this issue.
The evidence in the depositions reveals that these injuries were identified during the post-mortem carried out by Dr Ho.[21] As part of the child’s intensive care management and forensic assessment, a CT of his chest and abdomen was performed on the day of his admission to the Royal Children’s Hospital. This revealed the presence of multiple healing and more recent rib fractures and identified a possible pelvic fracture.
[21]Autopsy Report of Dr Ho, 1 August 2022, 4–6 (Depositions, 56).
In Dr Ho’s report, she concluded as follows:
At autopsy, there were multiple fractures including to the ribs, humeri, radii, tibiae, fibulae and ilium. These were consistent with the radiological findings. The fractures showed various stages of healing. There were no acute fractures. These fractures are the result of multiple severe blunt force impacts. Some of the fractures (metaphyseal corner fractures) can also be inflicted due to shaking of the infant with flailing of the limbs and are highly specific to non-accidental injury. Also, posterior rib fractures, as were seen in this case, are highly specific to nonaccidental injury, and can for instance be inflicted by squeezing of the chest. It is noted that ilium (pelvic bone) fractures are caused by high energy blunt trauma. There was no radiological or pathological evidence of underlying, non-traumatic bone pathology.
…
In conclusion, there were multiple and extensive traumatic injuries in this 8 week old infant on multiple planes of the body. The combination of autopsy findings provides very strong support for the hypothesis that the injuries are caused by non-accidental trauma, as opposed to the hypothesis that the injuries are caused by accidental trauma. The combination of these injuries is not consistent with a single event. However, the total number of events cannot be estimated with any certainty.[22]
[22]Ibid [11] and [22] (Depositions, 61–2).
You do not admit causing any of these other injuries to Alex. For me to rely on those as factors of aggravation, your counsel submitted that I would have to be satisfied about them being caused by you beyond reasonable doubt. She argued that I could not be satisfied to that standard that you caused these injuries to Alex, and that you should therefore be sentenced on the basis that the injuries you did cause Alex were isolated apart from what you described as an accidental dropping of the child which may have caused some injury.
In my opinion, the circumstantial case that you inflicted not only the brain injuries caused by shaking the child but also caused the other injuries which are the result of blunt force trauma is overwhelmingly strong and I am satisfied beyond reasonable doubt that you did cause those injuries. The reasoning is straightforward. The other adults who had any physical contact with the child deny inflicting any blunt force trauma on the child and there is no evidence either direct or indirect to indicate they did so. Their evidence has not been challenged in any sense by you. You were the primary carer for the child during the relevant time. You do admit to having shaken the child; something you initially denied. Your counsel pointed to your internet searches which included reference to ‘my 2 year old keeps hitting the newborn’. The way she put it was that ‘... there's also suggestion that the younger children have been involved with some issues.’[23] I am satisfied that given the medical explanation for the injuries, a child of that age could not have been responsible.
[23]Transcript of Proceedings, R v Hooper (Supreme Court of Victoria, S ECR 2022 0283, Lasry J, 22 March 2023) 52.
The way in which a sentencing court can take these acts into account was considered by the Court of Appeal in DPP v McMaster,[24] where it was said:
… [I]f admitted or proved, [uncharged criminal conduct] may be used to explain the context in which the child homicide occurred by going to negative mitigating circumstances upon which you might otherwise seek to rely.[25]
[24](2008) 19 VR 191.
[25]Ibid [53].
The Court also considered the result of refuting mitigatory circumstances. It said:
…Uncharged acts, if admitted or proved, would be equally capable of denying mitigation of sentence based upon good prospects of rehabilitation or absence of need for specific deterrence. Again, denial of the opportunity to argue, in mitigation, that an offence was an isolated incident will generally imply that the contrary was the situation, which is likely to bear upon culpability.
…
The reality should be recognised that consideration of admitted or proved uncharged acts will have some adverse effect, from an offender’s standpoint, upon sentence imposed in respect of a charged offence.[26]
[26]Ibid [56] – [58].
In my opinion, your acts which caused these other injuries are part of a series which led to you shaking the child and causing his death. They are all the product of an inability to cope and frustration at the constant and total dependency of the child. I do not conclude that any of the injuries you inflicted were gratuitous but in the result, my conclusion means that it cannot be said on your behalf that incidents of non-accidental injury inflicted by you on this child only occurred during the shaking incident on 29 August 2021.
Prospects of rehabilitation
You have clearly made an effort to take steps towards your rehabilitation. Since the offending, you have attended seven Men’s Behaviour Change Program sessions.[27]
[27]Letter from Nexus Primary Health, dated 9 March 2023.
Dr Pandurangi assessed you as having a ‘low risk of future violence.’[28] He said that you have no underlying mental health disorders which would impede your rehabilitation.
[28]Report of Dr Prashant Pandurangi, dated 8 March 2023 [79].
You have been diagnosed with a moderate level of Post-Traumatic Stress Disorder by psychiatrist, Dr Mrdja-Getlinger, with a moderate level of anxiety and Major Depressive Disorder – episodic. For this, you are prescribed Chlorpromazine (antipsychotic) and Escitalopram (antidepressant).
You began receiving treatment from psychologist, Mr Bacash, two months after the offending and this continued until your remand. Mr Bacash noted that when you first presented, you had:
Cognitive, vegetative, and affective symptoms of severe depression, including acute suicidal ideation and Post-Traumatic Stress Disorder (PTSD) features, while reporting visual hallucinations.[29]
[29]Report of Dr Bacash, dated 6 March 2023, 1.
This diagnosis and opinion are relevant to your mental health generally and to your prospects of rehabilitation.
In addition, a number of people have attested in character references to your qualities and their willingness to support you. Many also speak of the effect on you of Alex’s death and the way you have tried to cope with it.
Notwithstanding my earlier conclusions, I consider that your prospects of rehabilitation are reasonably good, and I accept what Dr Pandurangi says about your risk of future violence being low.
Plea of guilty
As I have noted at the outset, it is not contested that your plea was entered at the earliest possible opportunity. I also acknowledge that your plea is an acceptance of responsibility by you for what you have done, and I also recognise the utilitarian value of it. Your plea has spared Alex’s mother the pain of a trial. Given what I have read about you from the references I have referred to, I am confident your plea is also a strong expression of your remorse.
Conclusion
As I earlier noted, the maximum penalty for this offence has been recently increased to 25 years’ imprisonment, which is a clear signal from the Parliament that such serious offending must be met with significant punishment. As others have done I would adopt the comments of Vincent J in R v Dempsey,[30] when his Honour said:
When the life lost is that of a child for whose welfare the perpetrator was as parent, guardian and simply as an adult human being personally responsible, the situation must be viewed very gravely. After all, the true value of any community must be assessed in terms of the degree of genuine recognition that it gives to the rights and dignity of its most vulnerable and disadvantaged members.[31]
[30][2001] VSC 123.
[31]Ibid [7].
Over some period of time your inability to cope with the role you had adopted and which to some degree was forced on you by your family circumstances, led to acts of physical violence culminating in the shaking event that you eventually admitted to. Concerning what occurred on 29 August 2021, you described shaking the child five or six times although you endeavoured to minimise the violence of that action. In an extreme way, you violated the trust that was placed in you as is always the case with the care of one so young. I acknowledge that the pressures on you occurred during the COVID pandemic period with all the associated consequences including lockdowns. However, none of that could diminish the ongoing responsibility you had as a parent to protect and care for your child. You had been a parent since 2018 and you must have realised the responsibility that was on you to avoid doing the very things you did.
For the offence of child homicide, you will be sentenced to be imprisoned for a period of 11 years. I also direct that you serve a period of 8 years and 6 months before you become eligible to apply for release on parole.
Pursuant to s 6AAA of the Sentencing Act 1991 I indicate that had it not been for your plea of guilty, I would have sentenced you to a period of 13 years’ imprisonment, with a non-parole period of 10 years.
Pre-sentence detention
You have been on remand since your plea hearing on 23 March 2023 and accordingly, there is a period of 110 days (not including today) by way of pre-sentence detention which I declare should be reckoned as time served.
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