R v Leach

[2007] NSWSC 429

CITATION:	R v LEACH [2007] NSWSC 429
HEARING DATE(S):	11.4.07-19.04.07 27.4.07
JUDGMENT DATE :	27 April 2007
JUDGMENT OF:	Hulme J at 1
DECISION:	I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 15 July 2005 with a balance of term of 3 years. I record as the date upon which it appears that you will become eligible for parole is 15 January 2010
PARTIES:	Regina Benjamin Anthony Leach
FILE NUMBER(S):	SC 2006/2108
COUNSEL:	Crown: Mr W Creasey Prisoner: Mr T Golding
SOLICITORS:	Crown: DPP of NSW Prisoner: Legal Aid Commission of NSW

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IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J
27 April 2007

2006/2108

REGINA v Benjamin Anthony LEACH


REMARKS ON SENTENCE

1 HULME J: The Prisoner stands for sentence for the manslaughter, by an unlawful and dangerous act, of his 7 week old daughter, Ikicia. He had been arraigned on a charge of murder but after a voir dire enquiry in the course of which the Crown abandoned reliance on two evidentiary aspects of its case and I ruled as inadmissible a third, the Crown elected to accept the plea in full satisfaction of the indictment. The maximum penalty prescribed for manslaughter is, by reason of s24 of the Crimes Act, 25 years imprisonment

2 Many of the acts relevant to sentencing are common ground, but some are not and require decisions by me. I acknowledge that insofar as matters going to the Prisoner’s criminality are to be used adversely to him, I must be satisfied of them beyond reasonable doubt. Insofar as matters go to mitigation, I need only be satisfied of them on the balance of probabilities.

3 The deceased was born on 21 May 2005. She died on 13 July 2005. In the early hours of that morning, the deceased woke and began to cry. By arrangement the parents took it in turns to attend to the child on these occasions and the Prisoner got out of bed and took the deceased to the lounge room, placing her on the lounge. I am not able to find whether it was the Prisoner’s turn or whether he rose out of a desire to spare the child’s mother. He bottle fed the child and took steps to bring up wind. However, the deceased did not settle and continued to cry. Efforts by the Prisoner to induce the child to take a dummy were also unsuccessful.

4 The Prisoner sat on the child. The crying stopped, the evidence suggesting that the child stopped breathing at that time. The Prisoner rushed into the shared bedroom and woke Ikicia’s mother informing her of the stoppage of breathing. He dialled 000 and the ambulance arrived some time later. Until the ambulance arrived and in an attempt to revive the deceased, her mother to some extent but the Prisoner mainly, undertook CPR in accordance with instructions received from the 000 operator and knowledge the Prisoner had acquired as a child. When the ambulance officers arrived, they observed the Prisoner performing CPR in an acceptable fashion.

5 At the time the ambulance officers first examined the deceased, she had no pulse, her pupils were fixed and there was no breathing. Ikecia was taken to hospital but neither the efforts of the ambulance officers nor the hospital staff achieved any success.

6 When speaking to the deceased’s mother, to an ambulance officer, to a police officer at the hospital and later at the police station in a recorded interview, the Prisoner was less than frank as to the events leading to Ikicia’s death. However, later that day, the Prisoner informed both his mother and the deceased’s mother that he had accidentally sat on the deceased’s legs. Although his later interviews with police were not formally before me on sentencing, I think fairness to the Prisoner requires that I should record also that on 15 July, when again spoken to by police, the Prisoner admitted sitting on Ikicia’s body for a significant period.

7 Later, the Prisoner told Dr Giuffrida and Dr Allnut, two psychiatrists who examined him, that he had sat on Ikicia to stop her crying although he maintained to, one, that he had only put half of his body weight on her. To both psychiatrists, he admitted that he had sat on the child on one previous occasion with the result that she stopped crying. He maintained to one of these persons that that occasion was accidental.

8 That fairly bald account of events has an element of the bizarre about it and it would be both misleading and unfair not to say something more about the circumstances and the psychiatric evidence. However, before doing so, I should refer to some other matters.

Earlier events

9 There is evidence of earlier events relevant or arguably relevant to the Prisoner’s criminality to which reference should be made. He has asked that there be taken into account two further offences of assaulting Ikicia by striking her in the head area with an open hand thereby occasioning to her actual bodily harm. Putting aside the criminality in those incidents, and to which I must have regard, these incidents must have made the Prisoner aware that his conduct or some inability to control himself created a risk for a young and helpless baby. There is no suggestion he took any steps to ameliorate that risk.

10 During the post mortem examination, the deceased was found to have bruises of various ages to her face and both old and fresh fractures to a number of ribs. Also observed were internal haemorrhages in the head. Dr Lyons, the pathologist who conducted the post mortem said those injuries formed a pattern not typically seen in non-accidental injuries in children and consistent with an overall pattern of child abuse.

11 There was evidence that the internal injuries could have had more than one possible cause but otherwise no evidence about them and thus it would be unprofitable for me to pursue them further. Because of their number and location, it is not possible to explain all of the bruises by the 2 offences I have been asked to take into account. Furthermore, there was evidence in the form of a recorded interview with the deceased’s mother to the effect that at least one of the areas of injury to the face had been present since the child’s forceps delivery and others were due to the child’s tendency to indulge in sudden movement leading to her striking herself on objects or on the person holding her. There were other statements in that interview, including statements to the effect that a relative had had care of the child for some days, and also evidence from the Prisoner’s mother which argue against the Prisoner having caused any injury to the child. As the deceased’s mother did not give evidence, at least some of these could not be challenged and, particularly given the standard of proof required, I am unable to come to any conclusion that, so far as the deceased’s face is concerned, the Prisoner assaulted the deceased to any greater extent than the 2 offences to be taken into account demonstrate.

12 The injuries to Ikicia’s ribs were the subject of a deal more evidence. Dr Lyons said that there were healing fractures to the left 5th to 9th ribs and recent fractures through the healing calluses to those ribs. There was a recent fracture to the left 4th rib. There were also healing fractures to the right 6th and 7th ribs.

13 There was no evidence that persuades me that the recent fractures did not occur on the occasion of the deceased’s death. Indeed there was little or no issue so far as they were concerned. Dr Lyon’s said that the dating of the fractures was difficult but expressed the view that in light of a difference in appearance, the fractures to the right ribs occurred some time earlier than what I may call the old fractures to the left ribs. He thought the fractures on the left side could not be as old as 7 weeks although the fractures on the right side could be. He conceded there was a “slim” possibility the fractures on both sides were of the same age. He showed an obvious disinclination to say whether that possibility was a “reasonable” one but eventually gave evidence that “It’s reasonable to say that they could have occurred at the same time” but the possibility “was right at the low end of the percentage scale”. A difference in the extent of the fractures could explain the difference in appearance.

14 Dr Lyons agreed that rib fractures can occur at birth but were rare.

15 Dr Hilton was called on behalf of the Prisoner. Dr Hilton is a consultant in forensic medicine, appropriately qualified, and someone who, over a period of some 18 years in Western Australia carried out autopsies on something of the order of 60-120 babies each year.

16 Looking at photographs of the ribs on the left side of the deceased’s chest, photographs which showed noticeable signs of healing, Dr Hilton expressed the view that the indications of healing were consistent with having been occasioned at the time of the deceased’s “difficult and assisted berth” T55. He said that these fractures were older than 3 weeks and it was also possible that they occurred “pretty close to the birth date”. In so concluding he also recognised that rib fracturing in birth was unusual.

17 Taken to Dr Lyons’ evidence that there was a difference in appearance between the rib fractures on the left hand side of the chest and those on the right hand side, Dr Hilton said that it was possible that the difference was due to a difference in the extent of original fracturing.

18 Dr Hilton expressed the view that he would have expected the left rib fractures to cause the child to be “somewhat grizzly”, not throughout its 7 week life span but closer to the time of injury. The evidence of Ikicia’s behaviour is not sufficient to justify, even tentatively, any inference as to when the ribs were damaged.

19 In saying what I have, I should add that, in light of the extent of the injuries seen on post mortem and evidence that they were likely to hurt, I have some reservations about some of the statements in Ikicia’s mother’s recorded interview and some of the evidence of the Prisoner’s mother. I find it difficult to reconcile these matters with the medical evidence. However the limited nature of the issues debated before me, together with the fact that there could be no cross examination of Ikicia’s mother, means I need not pursue this difficulty further.

20 Considering all of the evidence that I have but briefly summarised, I feel unable to conclude to the requisite standard that the injuries to the left and right ribs did not occur at birth. But even if I had reached a different conclusion on that topic, there would remain at least the questions of whether I could be satisfied that the Prisoner caused the injuries and, if so, whether they occurred in circumstances that must have brought home to the Prisoner one or both of the following:-

1. The (undesirable) emotion or conduct which led to them – there is e.g. no evidence that any such injuries were not accidental - and
2. The fact or possibility of injury to the deceased in consequence.

21 In light of the paucity of evidence as to the circumstances in which the rib injuries occurred – assuming they were later than Ikicia’s birth – and the standard of proof required, I could not answer any of these questions adversely to the Prisoner.

22 In short, I do not find that the Prisoner committed more assaults on, or injured, Ikicia to any extent greater than is inherent in the charge and in the 2 offences to be taken into account.

The Prisoner’s background and the Psychiatric Evidence

23 The Prisoner was one of 4 children and until he was 11 grew up in a household marred by significant physical abuse by his father towards his mother. Notwithstanding this background the deceased’s mother in her recorded interview and the Prisoner’s mother in evidence indicated that the Prisoner did not resort to violence even in circumstances of provocation.

24 It seems clear that the Prisoner suffered hypoxia and consequent brain injury at the time of his birth resulting in intellectual disability and substantial short term memory difficulties. He was placed in remedial classes and with the cruelty of which children are capable, constantly teased at school and called a “retard and dumb arse” and the like. In consequence he become socially anxious and withdrawn and had difficulty relating to his peers. He frequently truanted for fear of being teased and taunted. He left school at year 11 and, with some help from a specialist employment agency that helps people with intellectual disabilities to find employment, has had a number of jobs including working at McDonalds, furniture removals and telemarketing. His last job was with the brother-in-law of the deceased’s mother but that person teased him with references to the Prisoner being “slow and hopeless” and finally sacked him because he “didn’t do anything right”.

25 Psychological testing revealed that the Prisoner’s level of intellectual functioning falls in the “extremely low range and at the first percentile and he met the criteria for a “mild intellectual disability”. Dr Giuffrida made the point that in this context “mild” is not mild in the sense of comparison with the population as a whole but by comparison with levels of mental retardation which range through moderate, severe and profound. Dr Giuffrida also observed that on the basis of the Prisoner’s language impairment “which to a large extent determines his level of everyday functioning” Mr Leach would in fact appear to be functioning at the level of 1 in 1000 thousand or that 99.9% of people would be functioning better than him on average. One psychological test revealed the Prisoner’s coping skills were at the level of a person aged 10 years and 8 months.

26 To both psychiatrists the Prisoner gave a significant family history of mood disorder by way of recurrent or chronic depression and bipolar disorder.

27 Dr Allnut, who had interviewed the Prisoner on behalf of the Director of Public Prosecutions was of the view that at the time of the deceased’s death, the Prisoner was suffering from an abnormality of mind arising from an underlying condition being a depressive disorder of mild severity and this in addition to his intellectual impairment and social anxiety which had persisted for many years. The doctor opined that the Prisoner was suffering from “feelings of inadequacy, increased propensity to irritability, poor self worth and feeling frustrated about himself and the child due to his depression, and less than normal capacity to cope with the circumstances due to intellectual impairment”, that the Prisoner “became preoccupied with his and others perceptions of his inability to settle the deceased”, “felt frustration with the deceased because each time he failed to achieve a good outcome for the deceased, the issue of his ability as father in the eyes of himself was raised” and was less capable of dealing with these feelings because of his intellectual handicaps.

28 Dr Allnut expressed the view that the Prisoner maintained capacity to understand events and to judge right from wrong. He said however that the Prisoner was “compromised in his capacity to cope with his circumstances” (and) “probably compromised in his capacity to control his actions” although Dr Allnut thought the extent of that compromise was less clear.

29 Dr Giuffrida’s diagnosis was somewhat different although the differences do not seem to me to be significant for present purposes. He also thought the Prisoner had an abnormality of mind, expressing the view that “given the combination of his mental retardation plus his anxiety and depressive conditions and the stresses of looking after a new born baby conspired together to rob him of his capacity to control himself at that moment of time” and referred to evidence that these conditions were substantial.

30 Dr Giuffrida also records that, according to the Prisoner, there were episodes of unpleasantness between him and the deceased’s mother up to 3 or 4 times a week during which she would at times describe him in the terms others had used, “slow and hopeless”. In her interview, Ms Tovey acknowledged disagreements between them and that she would “psych him up”.

31 To both psychiatrists the Prisoner gave a history of becoming increasingly frustrated at Ikicia’s crying and at his inability to induce her to cease. To Dr Allnutt he said that he began to feel hopeless and worthless. He became increasingly anxious as to how to care for the child but did not tell anyone of his depression because, as he told Dr Giuffrida, he didn’t want anyone to think that he “couldn’t handle fatherhood”. He recounted to Dr Allnutt that it was this frustration at his inability to stop Ikicia crying that led him to hit her on the occasions that are the subject of the offences to be taken into account.

32 Dr Allnutt’s report contains also the best explanation in the evidence as to why the Prisoner acted as he did on the night Ikicia died. After reference to the feeding and the Prisoner’s efforts to burp Ikicia and have her accept a dummy, Dr Allnutt’s report records:-

He felt frustrated, he said “I didn’t know what to do, I thought why does she do this every time I feed her, does she hate me, am I a bad father”. He put her down on the couch to his right leaning back and half sitting. He got up and sat on her stomach. I asked him whether he put all his weight on her and he said he did not put all his weight on her. I asked him, “what did you think you were doing when you did that”, he said, “I don’t know what I was thinking really”. I asked him, “what made you sit on her”, he said “I just thought I wanted her to stop crying, I didn’t know how, that’s all I wanted to do”. I asked him again why he had sat on her, he said “I didn’t want Janice to think I was a bad rather”. I asked him why did he think that sitting on the child was going to stop her crying, he answered, “I didn’t know any other way. I didn’t want to wake Janice up, because I didn’t want her to think that I was a bad father and I didn’t want her to hate me.” …
I didn’t think of the consequences. …
At the time he sat on the child he said his intention was to stop her from crying. I asked him how he was feeling and whether or not he felt angry, he described his feeling as frustration. He said he sat on her because he thought it would stop her crying. He said he did not put all his body weight on her. I asked him how much body weight he put on and he replied, “It was half”. I asked why not put all the body weight on her and he said, “I thought that would harm her”. He said he did not want to harm her when he sat down on her, he said “I didn’t want to hurt her, I didn’t want to kill her, I just wanted her to stop crying”. I asked him, “what were you thinking when sitting on her”, he said, “I thought if I do this, then I will stop her crying”, “at the time I wasn’t thinking straight, I didn’t think of the consequences, whether it was right or whether it was wrong”. I asked again, “so what was your intention” he stated, “to get her to stop crying”, “I did not want to kill her, I did not want to harm her”. I asked him whether or not his action was an expression of his anger and he agreed, he said, “At the time I felt frustrated, I didn’t know what to do”. He decided to “put her down to sit on her, to stop her from crying.”

33 I am satisfied that over a period the Prisoner had become increasingly frustrated at the deceased’s crying and what he perceived to be an inability on his part to stop that crying. I am satisfied that this frustration came to a head on the night Ikicia died. I am also satisfied that to a significant degree the Prisoner’s actions were the result of the medical or psychiatric conditions of which the psychiatrists spoke and that these in turn were largely attributable to the accident at birth which the Prisoner suffered.

Other Subjective Matters

34 The Prisoner was born in August 1981. He has no criminal history and I am satisfied was of thoroughly good character.

35 He has been in custody solely in relation to the subject offence since 15 July 2005.

36 The Prisoner is entitled to a discount for his plea of guilty. It was agreed between Counsel that it was only on the day before arraignment, that is the day before the trial commenced, that counsel for the Prisoner indicated to the Crown Prosecutor that the Prisoner would be entering a plea of guilty to manslaughter, and this on the basis of a defence of substantial impairment. It was therefore a late plea and I propose to allow the Prisoner only a discount of 10% or a little more on account of the utilitarian value of it.

37 In so limiting the discount I reject a submission supported by reference to, inter alia, the decision in R v Oinonen [1999] NSWCCA 310 that the discount should be greater. Because of the time that the indication of a willingness to plead was given the utilitarian benefit of such a plea or indication was at the bottom end of the scale. Furthermore, while the evidence before me shows that the Prisoner made admissions as to having sat on Ikicia and at a time which clearly linked that event to her death, so far as I am aware, there was no concession on behalf of the defence that a causal connection existed.

38 Evidence before the Court established that the Prisoner, having killed a child, would be at risk if placed with some of the other prisoners. However, he is currently in an area of Special Management Area Placement and the evidence shows he is likely to remain in those conditions. The evidence does not indicate that this involves harsher than usual conditions and indeed suggests the contrary.

39 The group of documents in which the evidence just referred to is contained indicates that the Prisoner seems to be making every effort to improve himself in prison in terms of working and instruction.

40 I am satisfied that the Prisoner is remorseful. There have been many demonstrations of this including the urgency with which he sought to wake the deceased’s mother, his efforts at CPR, his admissions at an early stage as to his involvement (even if the early ones could have been somewhat franker) and others made a couple of days earlier, a letter he wrote to Ikicia’s mother, and remarks “I didn’t mean it” he was overheard by a prison officer to make. To these indications should be added the evidence indicative of the Prisoner’s desire for Ikicia’s birth and the commendable efforts the evidence shows he displayed in caring for her, efforts which are not denied by the fact that they were marred by other conduct.

41 It was submitted the Prisoner is unlikely to re-offend and has excellent prospects of rehabilitation. I have no trouble in accepting this submission subject to a reservation as to the Prisoner’s capacity to perform better if he were placed in the same situation again. Finding as I have that his actions were more a reaction to his situation – mental state, depression, stress - than deliberate criminality, much will depend on those sorts of causes being adequately addressed. Whether they are or not is not solely within the Prisoner’s power. In that connection I should add that the evidence is silent as to whether the Prisoner is receiving any psychiatric or psychological treatment in prison apart from anti-depressant medication.

42 On the other hand, I am satisfied that nothing will be gained so far as discouraging re-offending or assisting rehabilitation by keeping the Prisoner in custody for longer than the minimum term his offending requires.

Principles of Sentencing

43 The purposes for which a Court may impose a sentence are set out in s3A of the Crimes (Sentencing Procedure) Act and include ensuring an offender is adequately punished, deterrence of the offender and others from committing similar offences, protection of the community, promoting rehabilitation of an offender, making him accountable for his actions, denouncing his conduct and recognising the harm done to the victim and the community by the crime.

44 To some degree these echo, to some degree they may go beyond, the factors reflected in sentencing prior to the introduction of the section – see R v Veen (No 2) (1988) 164 CLR 465. Some of these purposes are also expressed in terms that give no guidance as to how they are to be given operation. Thus what is adequate punishment? By what criteria is the adequacy to be determined?

45 Particularly in light of public criticism of a sentence recently given in a case having some similarities to this, it is appropriate to say a little about these purposes. Undoubtedly if one looked only to the seriousness of the consequences of offences, manslaughter - causing the death of another human being - would always be more serious than stealing, whatever the amount stolen. However, Parliament, and the law before Parliament intervened, requires that account be taken of not just one factor but all.

46 Furthermore, the various purposes will have different weights in different circumstances and as was recognised in R v Veen(No 2), sometimes the purposes will operate in different directions. General deterrence has greater weight to play in the case of offences which are common and usually committed after premeditation and planning. Such are more susceptible to being deterred than those committed in the heat of the moment. Some offenders need by way of personal deterrence no punishment going beyond the embarrassment of being caught for their first offence: And there is nothing to be gained by way of protection of the community by their incarceration. For some their feelings of guilt or remorse operate more strongly than punishment is likely to do.

47 And regard must be had for the subjective circumstances of offenders. No one can preside the criminal courts for long without becoming very conscious that some people are given, by comparison with others, very little chance in life. Alcohol or other drug addicted parents who customarily resort to violence rarely imbue their children with the standards that most in society adopt and rarely equip them to deal with many of life stresses. Of course, even among those whose upbringing or psychological makeup falls within the normal range there is a wide variety of capacities to cope and to control their emotions and conduct. There are limits to the extent to which idiosyncratic characteristics can be allowed for but that is not to deny that commonly some account may or should be taken of them.

48 The authorities make clear that in cases where an offence is to a significant extent the product of mental deficiency, general deterrence should be given less weight. The Prisoner and offence here fall within that principle. That is not to suggest that there should be no weight given to this factor.

49 Given the evidence and my conclusions as to the circumstances of the offence here and as to the factors that inspired it, I also regard personal deterrence and rehabilitation as having limited weight in this case in arguing for a longer rather than a shorter sentence, particularly against the background of the length of sentence which other factors inspire. That said, one matter for which the Prisoner may be severely criticised is his failure to address his emotions or lack of control after the blows to Ikicia which are the subject of the Form 1 offences. Embarrassment in doing so there may have been, but the circumstances – an adult carer and a baby – and the potential consequences were so great that any embarrassment, at least to an outside observer pales into insignificance.

50 One matter which must receive substantial weight is retribution, a term which fairly encompasses a number of the specific matters referred to in s3A of the Crimes (Sentencing Procedure) Act. The killing of a baby or young child by a parent is terrible.

51 I was referred to a substantial body of previous decisions in which this Court or the Court of Criminal Appeal has had to consider the manslaughter of a young child. I have attended to them all although I do not think it necessary to list them here. There are many features shared by many of these cases although commonly there are also differences. Among the factors which distinguish this case from a number of those to which I have been referred are the extent of the Prisoner’s brain and psychiatric condition and disabilities, his prior record and character and, operating in the other direction, the probable conditions of his incarceration, the criminality involved in the Form 1 offences and the fact that the events, the subject of those offences should, notwithstanding his disabilities, have provided fair warning.

52 The mental and psychiatric factors justify a finding of special circumstances and I propose in consequence to increase the balance of term at the expense of the non-parole period.

53 I should not conclude these remarks without recording that there was read to the Court by Ikicia’s mother a Victim Impact Statement. Both in its moving terms and in Ms Tovey’s demeanour while reading it, there was made obvious the suffering that Ikicia’s death and the Prisoner’s involvement in it have caused. I must acknowledge however, the limits to which such a statement can be put, having regard to the decision of this Court in Privitera.

54 Mr Leach, for the offence of manslaughter, and taking into account the two offences on the Form 1, I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 15 July 2005 with a balance of term of 3 years. I record as the date upon which it appears that you will become eligible for parole is 15 January 2010.

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