R v Kesic
[2001] VSCA 171
•4 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 305 of 2000
| THE QUEEN |
| v. |
| GARY STANLEY KESIC |
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JUDGES: | ORMISTON, CALLAWAY and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 September 2001 | |
DATE OF JUDGMENT: | 4 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 171 | |
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Criminal Law – Sentence – Manslaughter - Infant victim – Whether manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr D. Wraith | Victoria Legal Aid |
ORMISTON, J.A.:
Having had the benefit of reading the judgment of Vincent, J.A. in draft form, I agree that the appeal should be dismissed for the reasons he has stated.
CALLAWAY, J.A.:
I also agree with Vincent, J.A.
VINCENT, J.A.:
The appellant was initially charged with the murder at Wodonga on 15 July 1999 of Jed Anthony Britton, a child of his de facto wife. However, on arraignment before the Supreme Court on 31 July 2000, he entered a plea of guilty to a presentment containing a count alleging the manslaughter of the child based upon the performance by the appellant of an unlawful and dangerous act. In practical terms and in the context of the present matter, through that plea, the appellant admitted that he had caused the death of his victim by violently shaking him. In so doing he perpetrated upon the deceased a serious assault of a character that a reasonable person in his position would have appreciated was likely to expose the child to an appreciable risk of death or serious injury.
After hearing a plea in mitigation of penalty, the sentencing judge imposed, for the commission of this offence, a sentence of imprisonment for a term of ten years in respect of which a non-parole period of seven years was fixed.
Having been granted leave to do so, the appellant now appeals against that sentence on the sole ground that it was manifestly excessive in the circumstances.
It has not been claimed that the judge fell into identifiable error with respect to the application of any relevant sentencing principle, and the assertions set out in grounds 2 to 8 below have been advanced as possible explanations for and particulars of the contention made in ground 1. The claim in ground 3 that the judge
erred in his relevant finding of fact was abandoned in the course of the hearing before us.
The Grounds
“1.That the sentence imposed was manifestly excessive in all the circumstances.
2.That the learned sentencing judge gave excessive weight to the fact that the applicant gave different explanations, or did not give a full explanation, of how the injuries to the child Jed Britton occurred when questioned by various medical staff following the offence.
3.That the learned sentencing judge erred in finding, and gave excessive weight to the fact as an aggravating circumstance, that the applicant had not sought assistance from various agencies prior to the infliction by him of the fatal injuries to the child Jed Britton.
4.That the learned sentencing judge gave insufficient weight to the case note from the Department of Human Services, and other evidence, in relation to the applicant’s treatment of the children while they were in his care.
5.That the learned sentencing judge gave excessive weight to the fact that the applicant had physically abused the child Jed Britton on occasions other than and prior to the time that the applicant inflicted the fatal injuries upon the said child.
8.The learned sentencing judge gave insufficient weight to the following matters:
(a)The applicant’s plea of guilty.
(b)The fact that the applicant was caring for four children at the time of this offence.
(c)The fact that the child Jed Britton had been ill, placing the applicant under pressure.
(d)The fact this offence occurred when the applicant was in pain from a neck injury.
(e)The applicant’s lack of relevant prior convictions.”
Two other grounds (6) and (7) have been deleted upon application before the Registrar.
The Background
The appellant lived, from January or February 1999 until 15 April 1999, at premises in Wodonga with his de facto wife, Ms Britton, and her three children: J, aged seven years, H, aged three years and the victim, Jed Britton, who had been born on 16 October 1996 and was, at the date of his death, aged two years and nine months. Also resident in the house was the applicant’s own son, T, aged 12 years.
From early February 1999, by reason of the constant abuse by Ms Britton of both prescription and a variety of illicit drugs, Mr Peter Toohey, a protective worker with the Department of Human Services, child protection section, had been involved with the family. In late March 1999, an order was obtained at the Wodonga Children’s Court, Family Division, under which Ms Britton was required to participate in various support programmes. Thereafter, and for about a month, Mr Toohey visited the family approximately twice weekly.
On 15 April 1999, Ms Britton was imprisoned for some drug offences leaving the appellant with the care of all of the children. There is, as I understood the situation, no suggestion that he was unwilling to accept that responsibility nor is there any evidence that he possessed, at that stage, any sense of frustration or hostility against the child, Jed. In her statement to the police, Ms Britton described the appellant as moody and as exhibiting a tendency to become “cranky” and “quite aggressive” when deprived of the drugs that he required for the treatment of chronic pain related to a neck injury sustained some years earlier. Despite the reservations implied in these comments, she anticipated that they would be married upon her release from gaol and that he would assume the role of father to the children. Ms Britton stated to the police that the appellant was not “happy” that Jed had not been toilet-trained and that he was still drinking from a baby’s bottle. However, there is no suggestion in the material before the Court that she was concerned about the welfare of the children whilst in his care. She stated that, when she was in prison, the appellant informed her that he had commenced the toilet-training of the little boy and that things were going well. No date was given for this conversation.
Mr Toohey became aware, in April, that Ms Britton had been imprisoned and from that time onward he visited the home at intervals of approximately 10 days. He observed the appellant caring for the children on a number of occasions and indicated in a statement, to which I will return when considering ground 4, made after the death of the deceased that he formed the impression that he was coping well. Mr Toohey saw the deceased on 28 April, 3, 14, 21 and 31 May and on 10 June 1999. On each occasion, according to his statement, the child appeared to be well and happy. On 29 June, during a visit to the house, the appellant informed him that Jed had measles, and that he was asleep. He said that the child was to be taken to Dr Johansen, a general practitioner, that afternoon. It does not appear from the material before the Court that the child was taken to Dr Johansen or any other medical practitioner at that time. Although Mr Toohey did not see the deceased after 10 June, he expressed, in his statement, the view that the appellant appeared “exemplary” in his approach in caring for the children.
An arrangement that had commenced in March 1999 and pursuant to which the two youngest children would be picked up by Mrs Debbie Leeds, a child care worker employed by a community organization, known as the “Upper Murray Valley Family Day-Care”, continued after the imprisonment of Ms Britton. Under this arrangement, Mrs Leeds would take H and Jed to her home for about six hours, each Monday and Thursday. Had anything been amiss with respect to the physical or emotional state of either of these children during the period of these visits, I consider that it is unlikely that she would have failed to detect it. At one stage she observed two small round bruises on the right arm of the deceased between his elbow and shoulder, however she regarded them as inconsequential, and well within her experience in looking after young children.
Mrs Leeds noticed nothing that she regarded as suspicious or that raised any concern whatever until 24 June 1999, the last occasion on which she saw the little boy.
On that day, she attended at the appellant’s home to collect the children as usual. She noted that Jed’s hair was matted. This attracted her attention as it was generally kept clean and neat. She mentioned the matter to the appellant who said that his hair was coming out when brushed. She saw that a big section of hair was missing from the child’s head towards the left side. Mrs Leeds discussed this observation with her supervisor who suggested that the hair loss may have been due to cradle cap and recommended a change in the type of shampoo used to wash it. At the play-group on that day, as she put Jed to bed, she noticed that Jed was very quiet and that he did not eat his lunch. This also attracted her attention as it was not consistent with his normal behaviour. She observed that his left cheek appeared swollen and she felt a lump about the size of a 20 cent coin on the left side of his neck. Jed had what Mrs Leeds described at the committal hearing as “a really bad cough”. The lump was in the area of his neck where swollen glands can be felt. She noticed bruising under his chin which extended over most of the left side. The bruising was blue in colour but appeared to have faded. There was no evidence whatever as to how this injury had been sustained and, specifically, no basis upon which it could be attributed to any activity of the appellant. Approximately three days later she was contacted by the appellant who told her that the deceased had measles.
Jane Strauss, who had known the appellant and Ms Britton for some time, described the appellant as being very good with the children. She told of an incident that occurred, in May 1999, when the appellant told her that Jed had soiled his pants. She stated that he said to the little boy “Oh no! You pooed your pants. Why didn’t you tell me, you could have gone to the toilet.” The appellant asked Jed if he had finished and indicated that he would change him. She stated that he said to the child “If you do that again I’ll make you eat it”. A short time later, the boy emerged from his bedroom and it appeared to her that he had been eating his faeces. The appellant then said that he felt terrible as he had not intended that to happen. This witness said that she had not seen the appellant lose his temper with any of the children and she regarded him as being caring towards them. It seems to be apparent that the appellant was experiencing some difficulty with the toilet-training of the little boy from, at least, that time and probably throughout the entire period that he was caring for the child.
Dr Ross Andrews of the Wodonga Medical Centre had been treating the appellant with morphine for the chronic neck pain, earlier mentioned, from July 1996 and had seen him at approximately weekly intervals until his last consultation on 30 June 1999. He was aware that the appellant was looking after his de facto wife’s three children whilst she was in prison. On 30 June, the appellant indicated to Dr Andrews that he had a child who was sick. He expressed concern about the welfare of the children and the fact that he did not have Medicare cards for them. The doctor told him that he need not be concerned about the lack of these cards and made it clear that the children would not be denied medical attention. Although it appears clear that the deceased was ill over the following fortnight, the appellant did not avail himself of this opportunity to obtain treatment for him.
Amanda Britton, the sister of Ms Britton, stated that she had visited the appellant’s home on about ten occasions during the period that her sister was in prison. She saw the deceased about a week before he died and observed nothing out of the ordinary, save for a small mark on his lip. She did not see any marks or rashes that looked like measles.
On Wednesday 7 July 1999, the appellant telephoned Mrs Leeds and told her that H would be able to attend for day care but that Jed was still suffering from a bad cough and could not go. She attended at the house in Leonard Street on 8 July and 12 July 1999. As earlier indicated, on neither of these occasions did she see the deceased who would normally run out to see her. She asked the appellant whether he had taken the child to see a doctor, but he responded “No, not as yet. I couldn’t get him in”. He said that there was a problem as he did not have a Medicare card with Jed’s name on it. This statement was disingenuous in circumstances where, as I have pointed out, the appellant had been informed a week earlier that Dr Andrews would see the children whether or not a Medicare card could be produced. In any event, there was no evidence of any attempt being made to secure an appointment until the morning on which the deceased was fatally assaulted.
Joeline Brezina, a friend of the appellant, visited him at about 4 p.m. on Tuesday 13 July. She saw Jed lying on a mattress in the loungeroom watching television. He had a bucket next to him. The appellant told her that the boy had been vomiting.
Between 5 and 6 p.m. on that day Amanda Britton telephoned the appellant’s home and spoke to Jed who told her that he was sick. The appellant took over the telephone and said that Jed had “spewed” on his foot or leg and that he had to go. He then terminated the call.
Miss Brezina returned to the appellant’s home at about 6 p.m. and saw that Jed was still lying on the mattress. The appellant said to her that Jed had the measles and, as she was pregnant, she did not approach him. She observed red splotches on the boy’s arms and legs. He looked pale and drained and did not say much. The appellant indicated that he was still vomiting and said that he had earlier taken the child to the hospital and the doctor. He said that the doctor had stated that Jed was suffering from the measles and that he was taking the child back to the doctor on the following morning as the vomiting had not stopped. The child vomited while she was there and the appellant bathed him and placed him on the mattress again. Miss Brezina said that she did not notice any injuries such as bruises or marks on the little boy.
There was no evidence that the appellant took the child to a doctor or hospital at around this time.
At about 8.15 on the morning of 14 July 1999, Patti Arundel, a receptionist at the Wodonga Central Medical Clinic received a telephone call from the appellant requesting an appointment for himself. He was advised that this could be arranged for 10.50 a.m. He then said that he wanted Jed to be seen as well. There was discussion about the fact that he did not have a Medicare card for the boy. The appellant said that he had resolved this problem with Dr Andrews and the appointment was confirmed.
At about 10.30 a.m., the appellant arrived at the clinic holding Jed in his arms. Two witnesses, Marie Richter, and Dawn Collier who was a registered nurse, saw that the child’s head was slumped down and that he was apparently unconscious. The witness Richter heard the appellant say “I found him like this in the loungeroom”. The witness Collier observed that he was limp and wet and with no clothes on the upper part of his body. The appellant was also extremely wet. He was shaking and distressed. The child was taken into the treatment room and placed on a bed. Collier could detect no sign of breathing or pulse. His pupils were fixed and dilated. He was pale and cool to the touch. The appellant told her that he had found Jed in the bath. He said “He was sitting in the bath and he just went limp.” He said “He has had the measles and he has done this before”. Collier noted a bruise in the middle area of the back of the skull. She asked the appellant whether the child had had a fall to which he responded “No”. She asked him if the child had swallowed something and again he answered “No”. She said that the appellant told her that he had administered Jed mouth-to-mouth resuscitation. She re-established the child’s breathing and arranged for the urgent attendance of Dr Andrews and the ambulance service.
Dr Andrews obtained the assistance of two other medical practitioners, Dr Brewer and Dr Williams to assist in the resuscitation process. The doctors observed a number of injuries on the little boy, including a tear at the base of his penis about 1.6 cms. in length, scattered abrasions on his hands and feet and a bruise on his fingers. There was a poorly defined red area at the occiput. There was a wound on his foot. They did not find any rash consistent with measles.
The appellant sat beside Ambulance Officer Zoe Thorpe in the ambulance as the child was subsequently being taken to the Albury Base Hospital. He told her that Jed had been sick for a while and had developed what was described as a lazy eye in the last week or so. When asked what had happened that day, the appellant told her that the child was on the couch and sick, so he placed him in the bath. He said that the boy had been out playing with his sister and perhaps he had fallen and struck his head.
At the Albury Base Hospital, the appellant gave to a treating doctor, a history that at about 10 o’clock on that morning he had had a shower and had left some water in the bottom of the bath to wash Jed who had wet himself. He put the child into the bath while he dressed. When he returned, he found the little boy leaning back and gasping for breath, but not submerged. He picked up the child and found that he was limp and unresponsive. He administered mouth-to-mouth resuscitation but the only reaction that he elicited was a cough. He said that, at some point, the child’s head had clashed with his as he carried him. The doctor concluded that the history did not adequately explain the child’s condition, as it was obvious that the little boy had suffered a major head injury. He thought that it was highly likely that the child would die.
The deceased was then transferred to the Royal Children’s Hospital where he was cared for and examined by a neurosurgeon, Mr Jeffrey Klug and an opthalmologist, Dr James Elder.
Mr Klug formed the opinion that the child had sustained an acute head injury. He considered that the type of injury observed by him would have been occasioned by either very severe and repetitive shaking of the child or the infliction of repeated severe blows to the head. He regarded as very unlikely the possibility that one very severe blow could have produced the damage sustained by the deceased.
Dr Elder found a circumferential retinal fold in the right eye. He said that this condition was associated with severe and violent shaking injuries. He expressed the opinion that the injuries were inconsistent with an accidental cause and further that to have shaken the child “a little bit”, as the appellant stated he had done in a subsequent police interview, would have been unlikely to have resulted in the type of injury from which the child died.
Dr David Wells of the Victorian Institute of Forensic Medicine attended the deceased at the intensive care unit of the Royal Children’s Hospital on the afternoon of 15 July 1999. He found a partial circumferential laceration at the base of the child’s penis at its attachment to the abdominal wall. This involved approximately a third of the circumference of the penis and there were indications of early healing. Dr Wells expressed the opinion that:
“1.The injuries described are manifestations of blunt trauma to the genital region. It is not possible to age these injuries with any degree of certainty but the signs of early healing would suggest that they had been sustained in the day or days prior to the Children’s Hospital examination.
2.No specific account of any accidental trauma to the genitalia has been provided. Accidental trauma to young boys’ genitalia are unusual and it is difficult to comprehend an accident that could produce the range and type of injuries previously described.
3.In the absence of any specific account, I am of the opinion that it is most likely that these injuries have been inflicted by another party. The probable mechanisms are:
· Penile laceration. This has most likely been produced by forceful grasping and pulling of the shaft or foreskin resulting in stretching and tearing of the skin at the base of the penis.
· Abrasion on scrotum and laceration on perineum. These injuries are relatively non-specific and there are no features that would allow me to accurately identify the mechanism. Nonetheless grasping, twisting, pinching and, through this, contact with fingernails could produce such an injury.”
No explanation was ever provided by the appellant as to the cause of these injuries which were accepted by the sentencing judge as attributable to him, and were indicative of serious physical abuse prior to the receipt of the fatal injury.
At about 6.15 p.m. on 15 July 1999 mechanical life support was withdrawn and the deceased died at about 6.25 p.m.
A post mortem examination was conducted by Dr Matthew Lynch, a forensic pathologist. He concluded that the cause of the child’s death was the head injury that he had sustained. Additional to the signs of apparent injury that may have related to medical interventions, he observed bruises to the right forehead, possible carpet indentations and a bruise to the left forehead, an injury to the right back of the head showing a pattern bruising, a bruise to the right occipital sub-galeal area indicating the application of blunt force to the head, a left parietal bruise, and a tear of the upper frenulum that he considered had been caused by the application of force to the lip, and a tear to the lower lip area also caused by blunt force. There were two linear bruises on the chest. He observed an injury to the base of the shaft of the penis with bruising and abrasions and lacerations, an abrasion to the right buttock, bruises to the left upper arm consistent with adult fingermarks, a bruise to the left upper thigh, patterned abrasions to the left knee, bruising to the left knee, bruising to the right thigh, right knee and right lower leg and an injury to the face of the right toe.
The extensive and serious bruises and injuries found on the body were considered to be consistent with the child having been assaulted on a number of prior occasions. The constellation of injuries present on the body, which were considered to be strongly suggestive of non-accidental injury, comprised numerous bruises at various sites and varying in ages, disruption of the upper and lower fremuli, penile injury, a sub-dural haemorrhage which it was considered occurred as a result of either blunt head trauma, shaking or a combination of the two, bruising to the head and subcutaneous haemorrhage on the scalp with no evidence of scalp fracture indicating some form of blunt force being applied to the head, a discoid area of bruising on the child’s left upper arm suggestive of a grip mark, and the injuries to the eyes.
Each of the other three children in the appellant’s care was interviewed by the police, on 14 July 1999, after the deceased was admitted to hospital and they were notified of the general situation. The sentencing judge indicated that, by reason of the ages of the two younger children (seven years and three years), he would have regard only to the statement of the appellant’s son (aged 12 years). T said that he had never seen his father hit Jed or any of the other children. He indicated that Jed had been vomiting during the previous few days and that his father thought that he was suffering from the measles. He described marks like pimples that he observed on Jed’s stomach, arm and down his legs at around the time that Jed started to vomit badly. He said that, when the appellant and he were putting the little boy into the bath on one occasion, Jed slipped over and suffered a bruise on his right upper thigh. This occurred about four days prior to the death of the child. On another occasion, as Jed was putting a cup into the sink, he was struck on his head when the appellant opened the cupboard door, apparently not appreciating that the little boy was behind it. This event occurred about two days prior to his death. That bruise was on the right side of the child’s forehead. The boy fell onto his bottom but did not cry. The appellant attended to this bruise by putting some ice on it.
The appellant was subsequently interviewed by the police on two occasions. In those interviews he maintained that at about 10 a.m. on 14 July he had had a shower and left some water in the bottom of the bath so that he could wash the deceased. He took the child from the couch and started to undress him. He found that the little boy had defecated and that he had diarrhoea and his pants and body were badly soiled. The appellant stated that he lost his temper and assaulted the child by shaking him violently. He took the child’s pants off and put him in the bath. He stated that the young boy had been “docile” recently and had spots which were caused by measles. The child had been vomiting during the previous week and on the night before he was taken to hospital. He said that on that night Jed was unsteady on his feet and nearly fell over. He maintained that the deceased had not suffered any serious injury in the previous two or three weeks, save that he had slipped over in the bathroom about a month earlier and had bruised his forehead. He said that he had never smacked the children or had become angry with them. He denied ever dropping Jed. During the second interview, he asserted that, after taking the child out of the bath, the deceased had “head-butted him” twice as he carried him to the doctor. He maintained that he had never struck the deceased except, perhaps, on an occasion when he hit the boy on the hand after the child had touched a heater. He stated that, if there were any round bruises on Jed’s forehead, they could only have been caused by the head-butting on the day earlier. He did not know about any injury on the child’s right foot. As to the abrasion on the left side of the penis, he said he had been treating all of the child’s skin because of the measles.
The sentencing judge found that the death of the child resulted from a serious head injury sustained when he was severely, and probably, repeatedly shaken by the appellant. Any other injuries suffered by the child at the hands of the appellant were, his Honour considered, relevant only to the development of an understanding of the circumstances of the child’s death and the assessment of the appellant’s level of culpability. He made it clear that he took the other injuries into account only in this fashion and was careful to ensure that the appellant would be held accountable only for those that were incontrovertibly caused by him. After pointing out that young children often sustain injuries in the normal course of their daily activities, his Honour found that
“However, there are some particular and serious matters which are directly attributable to your mistreatment of the child. Plainly, the major head injury is the first. Next, the tear to the upper gum and the lower fraenulum also is another. Injury by blunt trauma to the right chest is another and, in particular, the penile injury.”
On the basis of the opinions expressed by the various medical practitioners who examined the deceased, the prosecution has accepted that all of these injuries had been sustained within a few days of the deceased's admission to hospital on 14 April 1999. This constituted the period of demonstrated abuse of the child by the appellant.
Ground 2
It is asserted by this ground that the sentencing judge placed undue emphasis upon the failure of the appellant to make full disclosure of the circumstances relating to the deceased’s condition to the medical practitioners and others who were endeavouring to assist him. The judge was properly concerned about this aspect of the appellant’s conduct, as the following exchanges which occurred in the course of the plea demonstrate:
“HIS HONOUR: He rang the doctors about 8.30 a.m. on the Wednesday morning.
THE PROSECUTOR: Yes.
HIS HONOUR: And it took him till mid-afternoon on the Thursday afternoon to say he shook the child.
THE PROSECUTOR: As I understand it, Your Honour, from the material I have before me.
HIS HONOUR: I will ask [defence counsel] about that and about what I should make of the histories given by the accused to the various doctors, bearing in mind that the child was deeply comatose and could not speak for himself and the only witness was the accused, so I will ask [defence counsel] what I should make of the various histories that the accused gave to the people who were no doubt depending upon those histories for the treatment of the child.
...
HIS HONOUR: One of the difficulties with understating what happened [defence counsel] is that the child was still alive and needed medical attention. The only person who could give the doctors a history to help the child, was your client.
DEFENCE COUNSEL: I understand that.
HIS HONOUR: And even so, it is conceded he understated the position.
...
HIS HONOUR: In many cases, [defence counsel], one can well understand people not wanting to make things worse for themselves by telling all the grim facts to police officers or others, but when you’ve got a little child who is deeply comatose and only you know what’s happened, there’s a very real question of culpability, isn’t there, if you don’t then tell the truth, because you’re faced at a crossroads, aren’t you. Either you put yourself first or you put the child first, and the thing I’d be assisted by you in the morning is did your client choose to put himself first and the child second.”
I do not understand the judge to have suggested at any stage that the child may not have died had the appellant made full disclosure, but rather to have directed attention to the appellant’s view of priorities in a situation where he was aware of the grave condition of the little boy. He regarded the failure of the appellant to inform fully the doctors and others who were concerned to save the child’s life as relevant to his level of personal culpability. In this context he remarked at one point:
“Finally, a matter of significant moral culpability on your behalf is that when the child needed your help of a truthful history to those doctors you lied to the doctors to protect yourself.”
The appellant could not have known whether or not disclosure may have assisted in the treatment of his victim and chose to protect himself. It was certainly open to his Honour to regard the behaviour of the appellant in that situation as reprehensible and as indicating that less significance was attributed by him to the preservation of the child’s life than the possibility that he might be held responsible for the boy’s condition. In my opinion, the judge was entitled to have regard to the appellant’s conduct with respect to this aspect not only when considering his level of personal culpability in the circumstances, but as casting doubt upon the assertions of general concern for the child’s welfare that had been made on his behalf in the course of the plea.
Ground 3
It is claimed by this ground, that the judge placed undue weight upon the failure of the appellant to secure assistance from various agencies prior to the infliction by him of the fatal injuries to the child. Support for this proposition could be found, the argument proceeded, in his sentencing remarks, in the following passage:
“Next, you are and were an intelligent man who had access to help. You knew the doctors. You knew the surgery well. You had access to the Department of Human Services. You were not a person lacking in intelligence who did not know where to turn. You are not a person who lacked competence and who was unable to find a way out of personal difficulty.”
As I have mentioned, the claim had been made on his behalf in the course of the plea that the appellant had been doing his best to care properly for the children but had encountered difficulties beyond his capacity to handle. The judge was understandably not impressed by this claim in a situation in which the appellant had assistance available to him, sufficient knowledge and experience to take advantage of the various services of persons he could call upon to secure that assistance and yet took no steps whatever in that direction until the morning on which the fatal injury was sustained. He was clearly entitled to conclude that the appellant, in spite of his claims to the contrary, was at least casual in his approach to matters affecting the child’s welfare. The situation was not one in which a responsible care-giver without access to avenues of support could be seen to have responded to increasing and ultimately intolerable pressure and suddenly lost control of himself.
Ground 4
His Honour stated in his sentencing remarks that the statement and case note of Mr Toohey provided no assistance in the circumstances. Whilst it would not be surprising if he possessed doubts about the value of Mr Toohey’s report which had been prepared after the death of a young child whose welfare he was required to monitor, it must also be borne in mind that he had not seen the little boy for more than a month before he died. In relation to some part of that period, it was evident that the treatment of the deceased was anything but “exemplary”.
I also consider that the remarks of his Honour earlier set out in relation to ground 3 assume significance in this context. Given that the appellant may have endeavoured to care for the children in an appropriate fashion for some time, on his own version, he began to encounter difficulties. As the judge pointed out, he had available to him avenues of support and assistance of which he did not avail himself. In particular, he could have called upon Mr Toohey, Mrs Leeds, Dr Andrews and others and failed to do so. This was hardly consistent with “exemplary” care-giving.
Ground 5
The sentencing judge made clear on more than one occasion that the evidence of earlier physical abuse of the deceased by the appellant was taken into account only in the assessment of the level of the appellant’s culpability and as assisting in the development of some understanding of what took place at the time of the fatal assault. There is nothing in his Honour’s remarks, made in the course of the plea or when imposing sentence, which suggests that he attached inappropriate weight to that evidence.
Ground 8
Each of the matters encompassed by this ground was the subject of specific attention by the sentencing judge in his remarks.
(a) The Plea of Guilty
(e) The appellant’s lack of relevant prior convictions.
His Honour stated:
“I take into account that you have pleaded guilty to manslaughter which has saved the victims of the crime who are living, further trauma by giving evidence in a trial. However, the case against you was overwhelming.
I take into account your lack of prior convictions.”
Although no submission was made to that effect before the judge, the argument was advanced in this Court on behalf of the appellant, that his plea should have been taken into account as indicative of the presence of a sense of remorse. This proposition lacks foundation in the circumstances of the present matter.
A plea of guilty can, in some situations, operate as a powerful indicator of the presence of a sense of remorse. An individual who accepts responsibility at a very early stage, particularly when he or she knows that the case against them is weak, may well possess credibility when asserting that they are remorseful or may be perceived as demonstrating, through their actions, the presence of such a response. On the other hand, an offender may well decide that it is in his or her interest to plead guilty. The individual may evidence no remorse at all but, appreciating that the prosecution case is overwhelming, accept responsibility for the purpose of securing a reduced penalty on the basis of the Court’s acceptance of the utilitarian value of such a plea. His Honour, who made no reference to remorse in his sentencing remarks, may be taken to have concluded that this was the situation in the present case, I consider that he was clearly justified in approaching the plea in this fashion.
It is also apparent from his specific reference to it in his sentencing remarks that he had regard to the absence of any relevant criminal history of the appellant as a matter to be taken into account in the appellant’s favour.
(b)The fact that the appellant was responsible for four children at the time of this offence
In this context, the judge stated:
“HIS HONOUR: Of course, (defence counsel), I totally understand and I accept totally that your client in taking on the care and upbringing of the three children plus his own, when the mother unfortunately had a medical problem and ended up in custody, he’s got to get credit for that and he will, he’s tried to bring them up. Secondly, he needn’t have persisted and he did persist and that’s to his credit as well, so that we all understand how three little children can put you under a lot of stress, especially in the toilet training stage. I totally understand that as well.”
The matter was not only clearly taken into account, but dealt with in a manner indicating that his Honour gave full credit to the appellant for his endeavours.
(c)The fact that the child Jed Britton had been ill, placing the appellant under pressure.
It is evident from the judge’s remarks that he was conscious of the different respects in which the illness of the victim assumed significance as a sentencing consideration. At one point he adverted to the vulnerability and dependence of the child upon the person who was primarily responsible for his welfare and, at another, to the pressures to which as a consequence of the child’s illness the appellant himself became subject. Again, there is nothing in his Honour’s remarks that indicates that he may have approached either of these aspects inappropriately.
(d)The fact this offence occurred when the applicant was in pain from a neck injury.
Regard was had to this factor as the following passage in the judge’s sentencing comments demonstrates:
“I take into account the fact that you were medically being treated at the time and that you were in pain from that injury, and I take into account the review of that matter helpfully summarised in Exhibit 1, the report of Dr Eugenie Tuck, Director of Medical Services at St Vincent’s, of 26 September 2000.”
The judge emphasized the fact that he had had regard to the matters set out in (b), (c) and (d) of ground 8 by returning to them in the passage:
“I take into account in your favour, as I have already stated, the fact that you were prepared to undertake the upbringing of the three children of Leanne, as well as, of course, of your own; the fact that the child had been ill and that you were under pressure from that; and the fact that you were also in pain yourself from your own injury.”
There is nothing to suggest that his Honour did not attribute proper weight to any of these considerations.
Ground 1
The question whether the sentence imposed upon the appellant falls outside the range of those available to a sentencing judge in the proper exercise of discretion can only be answered by reference to the totality of the circumstances relevant to the offence and offender involved.
Giving full weight to the considerations which militate in favour of mitigation of penalty, in my opinion the proper exercise of sentencing discretion required the imposition of a substantial term of imprisonment upon the appellant. As his Honour pointed out, his conduct involved a grave breach of trust as the effective guardian of a very young, vulnerable and ill child. The death of the victim was occasioned by the commission of a violent assault upon him. He was obviously shaken savagely and at one point the back of his head struck the floor with a deal of force. The level of culpability attached to those actions by the appellant must be assessed against a background of disregard of the victim’s welfare and the perpetration shortly before the fatal assault of at least one other serious assault upon him.
The judge addressed all of the relevant considerations in accordance with the applicable sentencing principles. There is nothing in his remarks which raises the suggestion that he may have attributed inappropriate value to any of the factors to which our attention has been drawn. Nor do I consider that the sentence itself can be seen to manifest error in that it could be properly regarded as being outside the range of those available to the judge in the circumstances.
I would dismiss the appeal.
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