R v Klamo - [2007] VSC 120

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1461 of 2006

THE QUEEN

TOMAS KLAMO

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 APRIL 2007
DATE OF SENTENCE:	2 MAY 2007
CASE MAY BE CITED AS:	R v KLAMO
MEDIUM NEUTRAL CITATION:	[2007] VSC 120

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CRIMINAL LAW – Sentence – Manslaughter – Unlawful and dangerous act – Death of one-month old baby caused by shaking that resulted in a subdural haemorrhage – Prisoner father of the child – No history of violence and no prior convictions – Single incident – Sentence of five years with a two year non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston S.C.	Angela Cannon, Solicitor for Public Prosecutions
For the Prisoner	Mr S. Langslow	Robert Stary & Associates

HIS HONOUR:

Tomas Klamo, you have been found guilty of manslaughter. The victim was your son Izaiah, who was born on 29 June 2005. About two weeks after his birth, he was in your care when you shook him. By your admission to the police, you did so with inappropriate force. The medical evidence is that, at a time which is consistent with this shaking episode, Izaiah suffered a subdural haematoma. Nevertheless, no symptoms were observed by those in attendance at the Health Centre to which Izaiah was taken for medical checks on at least one occasion between the shaking and the further and fatal subdural haematoma which occurred on 27 July, a month after Izaiah was born.

Only two persons were present with Izaiah in the hours before his death. You were one of them. Izaiah's mother was the other. Neither of you gave evidence.

This, of course, was your right. I do not criticise either you or your wife for exercising those rights. But their exercise meant that the jury had no assistance from you, apart from that which is in the police record of interview, when they came to examine a number of important aspects of the evidence. One such aspect concerned the circumstances which confronted the baby in and immediately before the very short interval between his distress being noticed in the early morning of 27 July and the arrival of the paramedics.

The medical evidence about the cause of the haematoma was equivocal. It is obvious to any reasonable person, however, that babies barely a month old should be shaken gently, or not at all. Any other kind of shaking – indeed, any application of force to the head of a child of that age – is clearly dangerous. And in one sense, the medical evidence was entirely consistent with Izaiah having been subjected to trauma shortly before he died. Subdural haematomas are commonly associated with trauma. One and perhaps the only alternative possible cause of the haemorrhage from which Izaiah died was pre-existing natural disease. But Professor Cordner, who performed an autopsy on Izaiah, found no sign of this.

It is also true that other injuries, such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Klamo

Details

AGLC: R v Klamo [2007] VSC 120
Case: [2007] VSC 120
Decision Date: 2 MAY 2007

CaseChat Overview and Summary

The defendant, Klamo, was convicted of manslaughter in relation to the death of his one-month-old child, who died from a subdural haemorrhage caused by shaking. The case was heard in the Supreme Court of Queensland. The child's death occurred in a single incident, and Klamo, the father of the child, had no prior history of violence or convictions. The central issue before the court was to determine an appropriate sentence for this tragic event, considering the defendant's background and the nature of the offence.

The court was tasked with balancing the gravity of the offence with mitigating factors, such as the defendant's lack of a criminal record and the absence of any prior violent behaviour. The court had to assess the culpability of the defendant and the appropriate deterrent and rehabilitative measures that the sentence should encompass. Given the circumstances, the court also had to consider the impact of the sentence on the defendant and his family, including the effect on the child's mother and any other children involved.

In delivering the judgment, the court acknowledged the severity of the offence and the profound impact of the child's death. The court emphasised the importance of both punishment and rehabilitation, ultimately concluding that a custodial sentence was necessary to reflect the seriousness of the crime. After considering the totality of the circumstances, the court sentenced the defendant to five years in prison, with a non-parole period of two years. The court determined that this sentence would adequately address the need for punishment while also providing an opportunity for the defendant to undertake rehabilitative measures.

Orders