R v Monroe

[2003] NSWSC 1271

Reported Decision: 149 A Crim R 478

Supreme Court

CITATION:	Regina v Monroe [2003] NSWSC 1271
HEARING DATE(S):	05/03/2003 - 07/03/2003, 10/03/2003 - 14/03/2003, 17/03/2003 - 21/03/2003, 24/03/2003, 26/03/2003 - 28/03/2003, 10/06/2003.
JUDGMENT DATE:	22 August 2003
JUDGMENT OF:	O'Keefe J
DECISION:	James Stuart Monroe is sentenced to imprisonment for 7 ½ years commencing on 28 March 2003 and concluding on 27 September 2010. I fix the non-parole period as 4 years to commence on 28 March 2003 and to conclude on 27 March 2007, so that the prisoner will become eligible for parole on 27 March 2007. I recommend that a psychiatric assessment of the prisoner be undertaken and, in the event that this confirms the opinions expressed by the forensic psychiatrist and clinical psychologist called on behalf of the prisoner at the sentence hearing, that appropriate psychiatric treatment and psychological counselling be given to the prisoner.
CATCHWORDS:	Manslaughter - Infant - Father - Killing of 3 month old baby by father - Death as a result of baby being shaken rapidly, strongly and excessively by father, accompanied by a throwing down onto furniture and striking the baby in the abdominal region with his fist - Serious case of manslaughter - Custodial sentence appropriate - Statistics - Use of statistics - Anticedents - Testimonials - Rehabilitation - Familial and presently incurable medical condition likely to shorten lifespan - Special circumstances.
LEGISLATION CITED:	Crimes Act 1900, s 24(1) Crimes (Sentencing Procedure) Act 1999, ss 3A, 21(2), 21A, 22, 23, 24(a) Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
CASES CITED:	Regina v Alexander (1995) 78 A Crim R 141 Regina v Blacklidge NSWCCA 12 December 1995, unreported Regina v Bilton [2000] NSWSC 923 and 1113 Regina v Ditfort NSWCCA 17 March 1992, unreported Regina v Dodd (1991-1992) 57 A Crim R 349 Regina v Hill (1980-1981) 3 A Crim R 397 Regina v Howard [2000] NSWSC 876 Regina v Howard [2001] NSWCCA 309 Regina v Isaacs (1997) 98 A Crim R 587 Regina v Low (1991-92) 57 A Crim R 8 Regina v Marshall NSWSC, 23 May 2003, unreported Regina v Morabito (1992) 62 A Crim R 82 Regina v Olbrich (1999) 199 CLR 270 Regina v Scott [2003] NSWCCA 28 Regina v Sempel NSWCCA, 31 March 1994, unreported Regina v Storey (1997) 89 A Crim R 519 Regina v Totten [2003] NSWCCA 207 Regina v Vangelder NSWCCA, 28 February 1994, unreported Regina v Vaughan (1991) 56 A Crim R 355 Regina v Whalan NSWCCA, 5 April 1991, unreported Regina v Woodland [2001] NSWSC 416. Savvas v The Queen (1995) 183 CLR 1 Wilson v The Queen (1991-1992) 174 CLR 313.
PARTIES :	Regina James Stuart Monroe
FILE NUMBER(S):	SC 70054/02
COUNSEL:	Crown - Mr R Herps Accused - Mr R Hoenig
SOLICITORS:	Crown - Ms L Viney (Director of Public Prosecutions (NSW)) Accused - Ms K Robinson (Legal Aid Commission of New South Wales)

- 31 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

22 August 2003

70054/02 Regina v Monroe

REMARKS ON SENTENCE

Background

1 James Stuart Monroe (the prisoner) was convicted on 28 March 2003 of having unlawfully caused the death of his three month old son, Ariel Monroe, that is, manslaughter. The maximum penalty for manslaughter is imprisonment for 25 years. Baby Ariel died at the Sydney Children’s Hospital on 1 September 2000 as a result of injuries inflicted on him by the prisoner at 12 Cook Street, Sutherland, on 28 August 2000. The prisoner was born on 29 November 1969. He was therefore 30 years old at the time of the offence; 33 at the time of his conviction.

2 The prisoner had been granted bail, and remained on bail until the date on which he was convicted. On conviction, his bail was revoked and he went into custody, where he has remained.

3 His sentence hearing was delayed by the need to obtain a pre-sentence report from the Probation and Parole Service as well as psychiatric and psychological reports, the last of which was not to hand until 5 June 2003. The Sentence Hearing took place on 10 June 2003.

The Onus and Standard of Proof

4 The decision of the Court on sentence is an important matter for a prisoner. It has often been said that in some instances it is no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof for the Crown in a sentencing hearing is the same as it is in a trial, namely, proof beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said:

“The judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities" (at 530).

5 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration. As was said in Regina v Storey (re supra):

“'Aggravating' and 'mitigating' must be understood in a wide sense and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (for example, the use of a weapon) or on the other hand of a prior or subsequent conviction.
The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice";

and:

“We have spoken of disputed 'facts'...there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard - not each of the disputed facts which is said to bear upon the issue". (supra at 531- 532).

6 In Regina v Olbrich (1999) 199 CLR 270 what was said by the majority in Regina v Storey (supra) was adopted by Gleeson CJ, Gaudron, Hayne and Callinan JJ (at 281 para 27) and by Kirby J (at 293 para 57). The law of New South Wales is to the same effect (Regina v Isaacs (1997) 98 A Crim R 587 at 592).

7 In determining, as I must, the facts on which the sentence is to be imposed upon the prisoner in this case (Savvas v The Queen (1995) 183 CLR 1) I have applied the law as set out above in the light of the verdict of the jury.

Statutory Matters

8 Whilst the maximum penalty for manslaughter is imprisonment for 25 years (Crimes Act1900, s 24(1)), the court may nevertheless impose a sentence of imprisonment for a lesser term if that is appropriate in the circumstances of the case (Crimes (Sentencing Procedure) Act 1999, s 21(2)). However, in approaching the question of sentence, the maximum penalty prescribed by the legislature is a material consideration, since the legislature manifests its policy in relation to a particular crime by reference, inter alia, to the maximum penalty prescribed. Thus, the maximum penalty reflects the seriousness of the crime as perceived by the Parliament and the public. In relation to manslaughter the range of circumstances in which the crime may be committed is wide, and it is the particular circumstances that will condition the court’s approach in the particular case.

9 By the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, the Crimes (Sentencing Procedure) Act 1999 was amended by inserting into it a new section concerned with the purposes of sentencing. That section provides as follows:

“The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.” (s 3A)

10 The Crimes (Sentencing Procedure) Act 1999 (“the Act”) sets out a large number of matters that the court is to take into account in determining the sentence. Several of these are relevant in the instant case; others are not. Thus, there was no plea of guilty (s 22), nor was assistance of the kind contemplated by s 23 of the Act given by the prisoner. Pre-trial disclosure took place, but that related only to medical issues and was pursuant to an order of the court that was resisted by the prisoner. In determining the sentence, the prisoner is not therefore entitled to any reduction in the penalty that would otherwise be imposed as a consequence of the matters referred to in such sections. However, the penalty imposed on him should not be increased as a consequence of his exercising his right to defend himself, to remain silent, and not to assist the authorities.

11 The prisoner was granted bail immediately after he had been charged, and remained on bail throughout the course of his trial. He went into custody immediately following his conviction on 28 March 2003, and as a consequence the court must, in sentencing him, take into account the time that he has been held in custody in relation to the crime (s 24(a)).

12 By s 21A of the Act the Court is required to take into account the aggravating factors referred to s 21A(2) that are relevant and known to the Court and the mitigating factors referred to in s 21A(3) that are relevant and known to the Court as well as any other objective or subjective factors that affect the relative seriousness of the offence (s 21A(1)(c). The matters referred to in those two subsections are in addition to any other matters that are required or permitted to be taken into account by the court under any act or rule of law.

13 The aggravating factors specified in the Act that are applicable to the present case are:

(i) the crime involved the actual use of violence (s 21A(2)(b));
(ii) the prisoner has a record of previous convictions (s 21A(2)(d));
(iii) the acts of the prisoner constituting the crime resulted in death (s 21A(2)(g));
(iv) the emotional harm caused by the crime was substantial (s 21A(2)(g);
(v) the prisoner abused his position of trust and authority as father and custodian of the deceased baby, and committed the offence whilst the baby was in his care and protection (s 21A(2)(k));
(vi) the victim was vulnerable because of the fact that he was just one day short of three months old at the time the prisoner inflicted the fatal injuries on him (s 21A(2)(l)).

14 On the other hand, the mitigating factors specified in the Act that are applicable to the prisoner are:

(i) that the crime was not part of a planned or organised criminal activity (s 21A(3)(b));
(ii) that the prisoner is unlikely to commit a like crime again (s 21A(3)(g));
(iii) that the prisoner has prospects of rehabilitation (s 21A(3)(h)).
(iv) the prisoner has shown some remorse for the crime he committed (s 21A(3)(i). However, the extent of such remorse is, in my opinion, qualified by a process of denial in which the prisoner is involved. It is perhaps understandable that he refuses, emotionally, to accept blame for what he did probably because of feelings of guilt that he, as the father of the deceased baby, caused his death.

15 As I have said, the factors referred to above are in addition to any other objective or subjective factors that affect the relative seriousness of the crime, and are also in addition to any other matters that are required or permitted to be taken into account by the court under any act or rule of law (s 21A(1)(c)). Thus the matters referred to in paragraphs 13 and 14 above are not an exclusive statement of the relevant factors. There are others in the instant case. For example, it is relevant that the accused has a medical condition to which I will refer later in these Remarks on Sentence.

Manslaughter

16 In Regina v Hill (1980-1981) 3 A Crim R 397 Street CJ pointed out the difficulty that is posed for a court in relation to the imposition of a sentence for the crime of manslaughter. He said:

“It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence.” (supra at 402)

17 When determining the appropriate sentence in a case of manslaughter there are competing considerations. On the one hand is the fact that there has been a felonious taking of human life. The felonious taking of human life is recognised both by the legislature and the community as a serious crime. That recognition must be addressed in the sentence imposed. On the other hand so too must the factual context and circumstances of the crime be addressed. They may significantly reduce the blameworthiness of the perpetrator. In the instant case, although the crime has cut off a young life at a very early age and the effects have been tragic for the mother of the deceased baby and, in my assessment, for his extended family, the same is true for the prisoner. He will have to live with the fact that he killed his own baby.

18 The difficulty that courts must come to grips with is a balancing of the demands of the criminal justice system and community expectations in relation to protecting the lives of members of the community and punishing a person who has taken a life feloniously, against the subjective circumstances of the person responsible for the taking of the life in the particular case. Such personal circumstances may vary widely. They may, for example, involve provocation, diminished responsibility or lack of specific intent to kill or inflict grievous bodily harm. In Regina v Alexander (1995) 78 A Crim R 141, Hunt CJ at CL highlighted this tension when he said:

“The sentence to be imposed for any crime must take into account the many different purposes which (the) sentence is expected to serve – the protection of society, personal and public deterrence, retribution and reform. (Veen number 2 (1998) 465 at 476)
“It is nevertheless always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot be properly given their place. ( Dodd (1991) 57 A Crim R 349 at 354).
“Except in well defined circumstances such as the youth or mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed ( Rusby (1977) 1 NSWLR 594 at 597-598). Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing ( Goodrich (1952) 70 WN (NSW) 42 at 43). Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those left behind, also feel that justice has been done.” (at 142-143)

19 In Wilson v The Queen (1991-1992) 174 CLR 313, Brennan, Deane and Dawson JJ said:

“One principle that stands higher than all others in the criminal law is the sanctity of human life.” (at 341)

20 In Regina v Whalan (NSWCCA, 5 April 1991, unreported), Lee CJ at CL, with whom Carruthers and Sharpe JJ agreed, said:

“…the commandment ‘Thou Shall Not Kill’ has a powerful place in the law of this country, in both the criminal and civil law, and society can never condone the taking of a human life as a solution to marital discord. The law does no more than recognise that provocation can overcome a persons self control and result in that person killing another, and in that circumstance it allows the crime to be seen as manslaughter, not murder.” (at p 7)

21 Regina v Hill (supra) was a case in which a prisoner had shot her de facto in the head three times. A conviction for murder was set aside as unsound and unsafe and a conviction for manslaughter was substituted by the Court of Criminal Appeal, the court imposing a sentence of 4½ years penal servitude with a non-parole period of one year in that case.

22 In Regina v Low (1991-92) 57 A Crim R 8 the prisoner had been charged with murder but was convicted of manslaughter. It would seem that this was on the basis of diminished responsibility since the circumstances of the case were that the prisoner claimed to have been struck on the head with a hammer by his bride-to-be. He claimed he had then taken the hammer from her and had then struck her on the head on a number of occasions with it, fracturing her skull and causing terminal brain damage. The trial judge had not imposed a goal sentence but had given the prisoner the benefit of a three year bond based on his assessment that the accused had acted whilst in a state of diminished responsibility. In lieu of the bond the Court of Criminal Appeal imposed a minimum term of two years imprisonment with an additional term of two years.

23 The Court pointed out that diminished responsibility may occur in a wide variety of circumstances but whatever the circumstances a finding of diminished responsibility or a plea on that basis does “not deny the legal responsibility of the person concerned for the criminal acts” the legislation requires that such criminal acts must still “be seen as an unlawful homicide” (supra at 18).

24 In Regina v Dodd (1991-1992) 57 A Crim R 349 a person who had killed a young woman some ten years in the past confessed his crime and pleaded guilty to a charge of manslaughter. The trial judge sentenced him to three years periodic detention against which the Crown appealed on the ground that it was excessively lenient. The Court of Criminal Appeal set the sentence aside and, despite the plea of guilty that attracted a significant discount on the sentence, substituted a fixed term of imprisonment for three years. In the course of its decision the court said:

“There ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime … has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary … Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case.” (supra at 354)

25 In Regina v Blacklidge (NSWCCA) 12 December 1995 (unreported) the Crown appealed against a sentence consisting of a minimum term of two years and an additional term of three years in a case of manslaughter that was based on the ground of diminished responsibility. The diminished responsibility arose out of the fact that the prisoner acted under the delusion, associated with cerebral arterio sclerosis, that his wife was having an affair with the victim whom he deliberately shot, having first gone home and selected for that purpose a .303 rifle from amongst his collection of weapons. The evidence indicated that the prisoner would have killed the victim and done so deliberately if his wife had in fact been having an affair with the victim and that he had expressed to the police the hope that he had killed the victim. The court stressed that, despite the existence of diminished responsibility, whilst:

“The abnormality of mind substantially impairs the offender’s mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility, but does not excuse the act.” (at 3)

26 Even where manslaughter is committed in a domestic setting as a result of provocation extending over a lengthy period it must still be regarded as a major crime. In Regina v Morabito (1992) 62 A Crim R 82 Wood J, with whom Hunt CJ at CL and Sharpe J agreed said:

“Manslaughter, even though committed under provocation, is recognised as a major crime and is one which calls for a correspondingly grave measure of criminal justice being meted out to the guilty party.” (at 85)

27 The courts have consistently treated the killing of young children by their parents or carers as serious cases of manslaughter. For example, in Regina v Vaughan (1991) 56 A Crim R 355 the court considered a case in which the prisoner had killed his five month old baby daughter when the child would not stop crying at breakfast. The prisoner picked up the child by her ankles and flung her with considerable force head first into the couch, doing so on the two or three occasions. On the last occasion the child lost consciousness whereupon the prisoner managed to revive her but did not take her to hospital until late in the evening. The child died the following day from massive cerebral swelling and subarachnoid haemorrhage. In allowing a Crown appeal against the inadequacy of the sentence Lee CJ at CL, with whom Gleeson CJ and Abadee J agreed after having reviewed a series of previous cases said:

“These cases … do no more than demonstrate that the courts have always regarded assaults by parents upon little children resulting in death as grave and serious cases of manslaughter.” (at 159);

and

“The explanation which the applicant gave for his conduct was that the child was crying and there was a loss of self control by him and he did what he did. He also brought to bear upon the explanation of a loss of self control that he had been under stress … his wife going to work, he having to take additional care for the children and being concerned about financial worries and affected by the pressures of his work. Those matters are, of course, human factors to be taken into consideration but it must be said, in order to see them in their proper light, that what the applicant has described as his problems and his troubles were no more than the kind of problems, which in this country, confront the average married couple who have two children fairly early after marriage and they provided, in my view, no real explanation at all for the killing of his daughter … They hardly provide a background or basis at all to an understanding to what is in truth a killing in bad temper because the child was crying.” (at 358 to 359)

The court substituted a sentence which, in the terms of the present sentencing regime, amounted to five years imprisonment with a non-parole period of three years and six months.

28 Regina v Ditfort (NSWCCA 17 March 1992 (unreported)) involved the death of a two and a half year old female child as a result of the prisoner having punched the child in the stomach with his closed fist, and hit her in the head with his fist because the child was “whinging” and “continued to whinge”. Hunt CJ at CL, with whom Enderby and Allen JJ agreed, said:

“There is always a paramount need for sentences in such cases to provide public deterrence against crimes of violence, particularly crimes involving young children. The starting and the finishing point in assessing punishment for such crimes must be the objective gravity of the offence.” (at pp 4 - 5)

29 The vulnerability of helpless infants and the dependency they have on their parents or carers for their safety and wellbeing was also stressed in Regina v Howard [2000] NSWSC 876 and in Regina v Woodland [2001] NSWSC 416.

30 The principles, as derived from both the statute and the decided cases, indicate that, in cases such as the present, a custodial sentence is usual, and that it would be appropriate in most cases of manslaughter involving young children, particularly where the death is caused by the actions of a parent or carer, to impose a custodial sentence. A custodial sentence would, in my opinion, be the only appropriate sentence to impose in the present case, and indeed so much was conceded by counsel for the prisoner.

Statistics

31 The range of the sentences that has been imposed in respect of the crime of manslaughter is wide. The statistics produced by the Judicial Commission of New South Wales show that range effectively to be from 18 months to 20 years. This is a reflection of the diversity of the circumstances in which a verdict of manslaughter can be arrived at. It also indicates that the statistics themselves are of limited value in manslaughter cases. It is necessary to know the factual substrate of the individual cases reflected in the statistics before the utility of the statistics can be properly understood. It is appropriate, if statistics derived from previous cases are to be taken into account in any meaningful way, that a subset of the statistics relating to the manslaughter of young children be examined.

32 In support of its written submissions, the Crown referred to a substantial number of cases involving the manslaughter of young children by their parents or carers. These are set out in the annexure to the Remarks on Sentence. A number of these bore at least some similarity to the instant case. In Regina v Vaughan (supra), the applicant lost self-control. In Regina v Vangelder (NSWCCA, 28 February 1994, unreported), a babysitter killed a four month old child when she “shook it out of annoyance”. In Regina v Sempel (NSWCCA, 31 March 1994, unreported) a female child aged one month suffered injuries that included haemorrhages in the brain, whilst in Regina v Bilton [2000] NSWSC 923 and 1113 a two month old child died as a result of vigorous shaking and a punch. Regina v Howard (supra) was a case of the manslaughter of an eight month old child as a result of severe shaking, to which the prisoner pleaded guilty. I have already referred to Regina v Ditfort (NSWCCA, 17 March 1992, unreported) and Regina v Woodland [2001] NSWSC 416, which latter case was also a baby shaking case. In all the cases referred to, substantial head sentences and non-parole periods were fixed, thus applying the principles referred to in the preceding portion of these Remarks on Sentence.

33 A closer examination of the relevant subset of cases is undertaken later in these Remarks on Sentence.

Submissions

34 It was submitted on behalf of the prisoner that the finding that should be made in relation to the cause of death of the baby Ariel was that the unlawful and dangerous act of the prisoner that ultimately caused the death was a vigorous shaking that set up a rotational movement within the baby’s skull that in turn caused a shearing injury to the bridging veins at the top of his skull that are connected to the sagittal sinus. It was submitted that it was such shearing injury that caused the subdural haemorrhage that led to the retinal haemorrhages, splitting of the retinal layers and swelling of the brain and in turn led to death.

35 On the other hand the Crown case was that the injuries sustained by the baby, particularly those on the outside of the skull, indicated a heavy contact between the baby’s skull and a lounge or settee that was in the living room of the matrimonial home. This was evidenced by a transfer injury in which the pattern of the fabric on the piece of furniture was seen to be replicated on the skull of the baby. There was ample evidence to support this, and I am satisfied to the relevant standard that the marks to which I have referred were, as the evidence strongly supports, caused by the baby being thrown down onto the settee with some force.

36 Furthermore, this submission advanced on behalf of the prisoner does not account for the injuries observed inside the body of the baby, in particular the injury to the baby’s liver. When taken in conjunction with the other internal injuries I am satisfied that they were caused by a blow, in the nature of a punch, by the prisoner to the baby. Although a number of other possibilities were explored both in cross-examination and in the evidence in chief given by the English experts called on behalf of the prisoner, I am satisfied that such possibilities are not consistent with the total picture presented by the injuries sustained by the baby and that they do not give rise to a reasonable doubt in my mind as to the cause of such injuries.

37 As a consequence, I am satisfied that the death of the baby occurred as a result of his being shaken rapidly, strongly and excessively by the prisoner, and that in addition the prisoner threw the baby down onto the settee and at some stage during the course of events struck the baby in the abdominal region with his fist.

38 I reject the suggestion that the internal injuries to the baby were caused by the ambulance officers or hospital staff in undertaking resuscitative measures. I also reject the evidence and statements by the prisoner to the effect that he “pumped” the baby’s stomach and “slapped his face left and right”. No suggestion was made by him in the “000” phone conversation that he had done any such things, nor was he advised so to do. Indeed, the advice extended only to mouth to mouth and nose resuscitation, which the prisoner said he was doing. Furthermore, no such suggestion was made by the prisoner to the hospital authorities. The emergence of any suggestion of pumping and slapping was well after the event, and after the prisoner had taken legal advice. Moreover, an examination of the statements made by the prisoner to the police when a video was taken at the matrimonial home in September 2000, in the history given to the specialists retained in connection with the sentence hearing, and in his evidence on the sentence hearing, demonstrate an improvement in, or strengthening of, his exculpatory story over time.

39 It was next submitted on behalf of the prisoner that the prisoner’s health should be taken into account in determining the appropriate sentence, including:

(a) his familial hypercholesterolaemia. This is a genetic abnormality that gives rise to significant elevation of cholesterol and, if untreated, can cause premature vascular disease, including coronary artery disease. This in turn is argued to be a significant matter, as is his consequent likely reduced lifespan;

(b) his depression and associated feelings of inadequacy. In this regard, it was submitted that the Court should conclude that there was a relationship between the prisoner’s mental state and general state of health at the time of the committing of the crime and the commission of the crime, with the consequence that less weight should be given to the principle of personal deterrence in sentencing the prisoner;

40 Subject to the question of the nexus between the state of the prisoner’s health, including mental health, at the time of the commission of the offence, the foregoing matters are appropriate to take into account in favour of the prisoner in determining the sentence to be imposed on him, and I will do so.

41 Considerable reliance was also placed on the extensive character evidence tendered on behalf of the prisoner, and it was submitted that this was appropriate to take into account pursuant to s 21A(3)(f). Furthermore, although not expressly stated in the written submissions advanced on behalf of the prisoner, it was inherent in the totality of the submissions made that the Court should approach the question of sentence on the basis that the prisoner was unlikely to re-offend (s 21A(3)(g)), had good prospects of rehabilitation (s 21A(3)(h)) and had shown remorse for what he had done in killing his son (s 21A(3)(i)). Putting to one side the question of character the other factors referred to, in my opinion, have substance and should be taken into account in mitigation of the sentence to be imposed on the prisoner.

42 Reliance was also placed on the remorse expressed by the prisoner, both to medical experts to whom he gave a history and in his evidence before the Court. The prisoner defended the matter, as he was entitled to. There is thus no question of remorse being shown through a plea of guilty. This does not aggravate the criminality involved, but it does mean that it would be inappropriate to apply certain discounts on sentence that might otherwise be available. The prisoner said that he accepted responsibility for the death of his son and was “devastated that my actions resulted in the death of my son”. I have no doubt that the prisoner is remorseful and genuinely so, but I also have no doubt that his remorse is qualified by the consideration referred to in paragraph 14(iv) above. Nonetheless, in imposing a sentence on him I have regard to his remorse.

43 On the other hand the Crown stressed a number of the factors referred to in the Act and the cases referred to above. These included:

(i) the objective seriousness of the crime, namely that it involved the taking of a human life;

(ii) the relationship of trust and dependence that was breached as a result of the infliction of the injuries that led to death;

(iii) the age of the prisoner. Since he was 30 years of age at the time of the commission of the offence, youth and inexperience could not be called in aid for him. I think this is correct;

(iv) the antecedents of the accused;

(v) the need for protection of young people by the imposition of a penalty that has a general deterrent effect.

The Facts

44 On Sunday 27 August 2000, the baby Ariel was, as can be seen from the evidence of Ms Madden and the baby’s mother Ms Waitai, healthy, happy and acting in the way a baby of three months old would be expected to act. Although he had been a little off colour in the preceding week, he had recovered by the Sunday and was not exhibiting any distress. This situation continued on the morning of Monday, 28 August 2000, when Ms Waitai woke. Having changed and fed Ariel, she left for work at about 6.50am. At that time he was, in her words, “quite content”. He managed the formula that she fed him from his bottle “quite well” and although the time of the morning was not such as to give rise to a lot of interaction, she said that “he was awake, and gave me a few smiles”.

45 According to what the prisoner told the hospital authorities, he was wakened at about 8.30am by the baby screaming. He said that he prepared some milk and that the baby drank some of this, that the baby’s sister woke at about 8.45am, and that the baby started to cry again. Again, according to the prisoner, he tried to feed the baby, but he did not display any interest in the bottle, and the prisoner noted that the baby began to nod off. Thereupon the prisoner said he went to the toilet for five to ten minutes, and on his return noticed a large wet patch on the pillow of the baby, who had begun to cry again. The prisoner’s case was that the baby then started to go blue, became limp – although not unconscious – and that thereupon he tried to give some mouth-to-mouth resuscitation but, according to what he told Dr Moran at the hospital, the prisoner did not do any chest compression.

46 The evidence of the medical specialists and hospital authorities called in the Crown case was cogent, consistent and convincing. The jury rejected the version of events given by the prisoner. I am satisfied beyond reasonable doubt, as I have indicated above, that the prisoner shook the baby violently, threw him heavily onto the settee which was in the living room, and at some stage during the course of the events, inflicted a quite heavy blow to Ariel’s abdominal region. The combination of shaking and impact on the lounge set in train a sequence of events that culminated in Ariel’s death. The blow inflicted to Ariel’s abdominal region caused internal injuries, the most telling of which was the laceration to the baby’s liver, although such injuries did not give rise to or hasten the death of baby Ariel.

47 Endeavours by the prisoner to blame the injuries to the baby’s abdominal region on the ambulance officer who administered cardio pulmonary resuscitation (CPR) for approximately one minute, whilst perhaps appropriate in defending himself, nonetheless failed. I am satisfied beyond reasonable doubt that the CPR administered by Ambulance Officer Ford was carried out skilfully and gently by a health professional of longstanding, who was highly experienced in relation to the proper administration of CPR. There is no evidence that CPR was administered by any other health professional or person, and indeed at the hospital the resuscitative methods adopted were such as to render CPR unnecessary. It was not suggested that any health professional other than Ambulance Officer Ford, or any other person, had administered CPR and there is no evidence that this occurred.

48 I am satisfied to the requisite standard that the actions of the prisoner were as a result of a sense of anger, exacerbated by his condition due to the ingestion by him of 12 beers and the smoking of marijuana on the preceding evening. However he did not, nor do I, associate any actions towards the deceased child with either any depression or his heart condition. In this regard, he gave evidence:

“Q: Your shaking of the child had nothing to do with the fact that you may, from time to time, suffer from depression?
A: Yes.
Q: And your shaking of the child similarly had nothing to do with the fact that you have a heart condition?
A: I would say no, sir.”

49 There was an endeavour by the prisoner to exculpate himself on the basis that he had slapped the baby in an endeavour to resuscitate him. There was also a late endeavour by him – namely in the video taken on 11 September 2000 – to suggest that he had compressed baby Ariel’s stomach. He repeated this in the history he later gave to various people. I do not accept the assertions by him in that regard, either as recorded in the video or as given in his evidence on the sentence hearing. He expressly negated any chest or like compression in his recounting of the events to Dr Moran on 29 August 2000. A close examination of what was said and advised and then responded to in the course of the “000” call reveals that there is no suggestion that he should administer any compression to the baby Ariel, or that he did so. The advice he was given was to breathe into the baby’s mouth and nose. He told the person on the phone that he was doing so, and sought advice as to the precise rate at which he should continue such form of resuscitation. At no time did he suggest that he was doing anything else. The phone discussion was contemporaneous, and is in line with what he told Dr Moran the next day.

50 The events of 11 September 2000 took place after the prisoner had been advised by his lawyers not to take part in a record of interview. He was entitled to receive and act on such advice. In addition, he was warned by the police who attended at 12 Cook Street, Sutherland on 11 September 2000 that he did not have to say anything, but that anything that he did say could be used in evidence. His assertion on this occasion that he had compressed baby Ariel’s abdominal area was gratuitous, occurred on one occasion, and in my opinion was not a truthful recounting of what occurred. His evidence to a like effect is in a similar situation. It is to be observed that although the prisoner made such an assertion on one occasion when he was demonstrating to the police what he had done, he did not do so on the second occasion, when he again demonstrated what he had done on 11 September 2000. Furthermore, on the first demonstration, it is difficult to understand how it is that the compression took place, since the baby was not on the ground or on the bed, but rather was said to have occurred as he was putting the baby down.

51 I am satisfied beyond reasonable doubt that the prisoner was annoyed with baby Ariel for disturbing him, for crying and continuing to cry, and that in these circumstances the prisoner lost his temper and inflicted the injuries to which I have already referred.

Victim Impact Statement

52 There were no victim impact statements tendered on the sentence hearing. However at the trial of the prisoner, Ms Melanie Waitai, the prisoner’s partner, the mother of the deceased child, gave evidence from which it was apparent that the death of Ariel had caused her and other members of her and the prisoner’s family considerable anguish, as was to be expected from such an event.

Testimonials

53 Twenty-two testimonial letters were tendered on behalf of the prisoner. Some of them were from relatives, some from friends either of the prisoner or of his parents. One was from his mother and father; one from Ms Melanie Waitai. All of them speak of the prisoner as a loving parent for whom an act of violence of the kind found by the jury was difficult to understand or accept. Some of those who wrote ascribed his actions to his medical condition. One went so far as to suggest that the events occurred whilst under the effect of some immediate medical condition, although there was no evidence to support such a conclusion and no such argument was advanced at the trial on the sentence hearing. The testimonial letter from his mother and father spoke of him having a normal childhood in a loving, close and caring family. In it, they say that he did not have any problems at school and went into an apprenticeship and completed it. Theirs and that from his sister were the only testimonial that made any reference to the antecedents of the prisoner. His record was explained by his parents on the basis that:

“At one stage he did get mixed up with the wrong crowd and got himself into trouble on some occasions.”

54 Whether this reference is intended to comprehend the assault occasioning actual bodily harm is not clear, but if it does, then it undoubtedly downgrades the seriousness of the events in which the prisoner was involved, and to which I will advert later in these Remarks on Sentence.

55 Ms Waitai speaks highly of him in her testimonial letter. There is no hint of domestic discord in it. The picture of the prisoner that is painted in her letter is of a person who was a loving and caring parent who had a close bond with his children, but who changed in various ways after he underwent bypass surgery at the age of 31. Ms Waitai observed him as a loving parent and said that she had “never witnessed James to raise his voice let alone a hand towards them”. She does not make any reference to the assault occasioning actual bodily harm. However this occurred before she met the prisoner in 1995 and the absence of reference to the conviction suggests that she was unaware of it.

56 To all his friends and relatives the prisoner presented as open and honest, however I must say I found that this was in contrast to what I regarded as somewhat manipulative and less than frank behaviour on his part in a number of respects. For example, in relation to the treating doctors, in relation to the police when they visited his house and took a video on 11 September 2000. In the witness box I formed the firm impression that he was still in denial and saw himself at least in part as a victim, rather than merely a perpetrator. The same is true in relation to the way in which he sought to deal with the assault occasioning actual bodily harm, and his claims about the medical staff at Child Protection Unit of the Sydney Children’s Hospital.

57 On balance, however, I accept that at least up until the time of his heart problems and his ceasing work as a consequence he was, in a domestic setting, a reasonably good parent.

Antecedents

58 As I have already briefly stated, the antecedents of the accused include an offence involving a motor vehicle and one of false pretences, whilst still a juvenile. As an adult he was convicted of some drug offences, two of which were for the supply of cannabis, another for goods in custody. For these he was sentenced to 40 hours community service and required to enter into a recognisance to be of good behaviour for a period of 18 months. In 1994, when he was almost 24 years of age, he was convicted of assault occasioning actual bodily harm for which he was sentenced to 125 hours of community service. This is a more serious charge than those previously referred to with which I will deal in greater detail below. In 1999 he was convicted of driving a motor vehicle whilst having a mid-range quantity of alcohol in his blood. For this he was fined and disqualified from holding a licence for a period of 8 months.

59 The offence of assault occasioning actual bodily harm occurred in a night-club shortly after 1 o’clock on the morning of 11 June 1993. The circumstances, as revealed in the Crown brief and the statements of witnesses, were that the prisoner had his feet on a table. He was asked to remove them, did not respond, was then motioned to remove his feet and touched on the knee to indicate this. Thereupon the prisoner swung a punch into the stomach of the attendant and a struggle ensued between the two of them, in the course of which the prisoner hit the attendant in the ear with a glass, resulting in cuts to the attendant’s left ear and left cheek. The cuts to the ear led to loss of blood and the injuries in both places required medical attention.

60 The prisoner pleaded not guilty to the charge, and gave evidence. However after a hearing he was convicted. The circumstances of the offence were that the prisoner was the aggressor and that he inflicted not insignificant injuries on a person, who was doing his job. The finding of the court adverse to the accused involved the rejection of his version of events in which, as is apparent from the evidence he gave about the incident on the sentence hearing, he was anxious to paint himself as the victim rather than the aggressor. This accords with the history of this event that he gave to Dr Carne, consultant forensic psychiatrist, in which he said he was “the victim of an assault by a nightclub security guard of an unprovoked nature.”

61 The picture that emerges from the prisoner’s antecedents is less favourable than that painted in the testimonial letters to which I have referred. When the two are combined and regard is had to the behaviour of the prisoner that gave rise to the death of baby Ariel, I am satisfied that the prisoner is a person who, although presenting as of good character, has a side to him that is less favourable than that perceived by those who wrote testimonials on his behalf. He is a person who is subject to outbursts of anger that can be expressed in physical ways and this is what occurred at the time he killed his son. There is a need for him to learn to control his anger, and anger management courses during the period of his imprisonment would probably be beneficial in this regard.

Rehabilitation

62 The Probation and Parole Service Pre-Sentence Report reveals that whilst in custody the prisoner’s behaviour has caused no problems and that he has applied to participate in stress management and computing courses and, although not expressly adverting to rehabilitation prospects, it is to be inferred from the report that these are good.

63 The report from the consultant forensic psychiatrist, Dr Carne, reveals a history of anger, anxiety and depression from childhood. It also reveals a history of marijuana dependence to a high level, with up to 15 cones per day being used. Indeed, the prisoner revealed that on the day before the offence he had watched a grand football final, drunk “12 beers”, and had “smoked and consumed marijuana”. The report also states that as a result of his heart condition and the medication that he was taking for it, he experienced a number of problems - including problems affecting his marital relationship. This in turn led to depression and feelings of guilt. He told Dr Carne that “he and Melanie began to fight”. Again, in his recounting of events to Dr Carne, the prisoner tended to paint himself as a victim, complaining about the Child Protection Team and what he claimed was a failure on their part to listen to him. This is inconsistent with the evidence at the trial.

64 The opinion expressed by Dr Carne was that the prisoner suffered from recurrent major depressive episodes due to underlying depressive predisposition triggered by feelings of inadequacy, precipitated by inability to work, medication and side-effects, recurrent ischemic heart disease symptoms and conflict with his wife. Dr Carne was of opinion that the prisoner should receive psychiatric treatment, including anti-depressant medication.

65 Dr Carne’s report fortifies the conclusion that the prisoner is, and has for a long time been, an angry man whose anger is capable of being expressed in physical terms, and that this is what occurred at the time he committed the offence for which he is now to be sentenced.

66 Professor David Wilkin is a cardiologist. He has been treating the prisoner for some time. The prisoner assured Professor Wilkin that “he is no longer drinking” and that he is adhering to his treatment regimen. Professor Wilkin expressed the view that “incarceration would be disastrous” for the prisoner, but in a later report that was prepared after the prisoner had been convicted Professor Wilkin did not reiterate this view. However he indicated that the underlying inherited abnormality of lipid metabolism and premature vascular disease will, unless some new therapy becomes available in the near future, almost certainly reduce the lifespan of the prisoner. The extent of any such reduction is not, however, quantified. It is, nonetheless, a relevant matter in favour of the prisoner in relation to the imposition of an appropriate sentence.

67 Mr Taylor, a clinical forensic psychologist, carried out a psychometric assessment of the prisoner having first taken a history from him. This history revealed depression from childhood times with medical intervention when he was about 10 years of age. However the prisoner told Mr Taylor that he had refused to talk to the doctor to whom he was taken.

68 The prisoner revealed to Mr Taylor that he had experienced some problems with alcohol and cannabis in his teenage years, and that having given up cannabis following his heart attack he took it up again after abstinence for about one and a half months. His recounting of the events leading up to the death of his son were self-excusing.

69 Two matters of importance emerge from Mr Taylor’s report. The first is that the prisoner has a high predisposition towards forming dependence on illegal drugs. The second is that whilst he has a reasonably stable personality, he has indications of histrionic personality adjustment and some depression. Mr Taylor’s assessment of his likelihood of recidivism is that it “is indeed very low”.

70 The medical, psychological, psychiatric and probation reports support a conclusion that the prisoner has excellent prospects of rehabilitation, subject only to three matters. The first of these is the need for him to recognise his potential for further drug dependence; the second is the need for anger control; the third is the need for treatment in relation to his depression. Each of these matters should be able to be addressed by appropriate educational courses and medical treatment whilst in custody.

ANALYSIS OF CASES

71 The cases relied on by the Crown that bear some similarity to the present case are set out in a schedule to these Remarks on Sentence. Those which bear the most similarity to the present case are Regina v Sempel (supra), Regina v Harris (supra), Regina v Ditford (supra), Regina v Bilton (supra) and Regina v Woodland (supra). In addition reference was made to the sentence imposed by Adams J on 23 May 2003 in the matter of Regina v Marshall (Adams J, NSWSC, 23 May 2003, unreported). That was a case in which the accused had been acquitted of murder by a jury but convicted of manslaughter. The injuries were to a young child and consisted of severe injury to his brain stem. In addition he was found to have an occipital hairline fracture of the skull, however, the evidence did not permit the conclusion that the accused had inflicted this injury or had done any more violence to the child than shaking it. In that case Adams J having applied a utilitarian discount in the order of 20 percent fixed a term of 6 years imprisonment with a non-parole period of 3 years and 6 months in the light of the special circumstances that he found to exist.

72 The other cases referred to in the preceding paragraph involved sentences ranging between 10 years (Ditford) and 7 years (Sempel and Bilton). In Ditford the death resulted from peritonitis caused by a blow that ruptured the stomach and diaphragm of the baby. In that case there had been a plea of guilty. In Woodland the two year old child died as a result of head injuries that involved sub-arachnoid and subdural haematomas and increased intracranial pressure that caused brain damage and retinal haemorrhages that indicated a combination of an impact to the head and severe shaking. The accused pleaded guilty, was given a 20 percent discount for such plea and the fact that he was young was also taken into account. Nonetheless the sentence imposed was 7 years and 9 months with a non-parole period of 4 years and 9 months. In Howard the injuries consisted of bleeding in two layers over the brain and retinal haemorrhage. These were caused by severe shaking of the 8 month old child. The accused pleaded guilty, for which was given a 10 percent discount. The fact that he may have to spend time in protection was also taken into account and special circumstances were found. Notwithstanding this a sentence of 7 years and 6 months was imposed with a non-parole period of 5 years and 6 months. In Sempel the accused had pleaded guilty to the manslaughter of his one month old daughter. This was as a result of a number of injuries that included fractures to the skull and haemorrhages in the brain. Taking into account the plea of guilty and accepted contrition, a sentence of 7 years with a minimum term of 5 years and 3 months was imposed. In Bilton, Bell J, sitting without a jury, convicted the accused of manslaughter following a plea of not guilty. The child involved was aged two, the accused twenty nine. The child died as a result of shaking and a punch. These actions were done out of frustration. The sentence imposed in that case was seven years, with a non-parole period of four years and six months. The accused in that case was of low intelligence, was accepted as having shown great remorse, and account was taken of the fact that he would spend his term of imprisonment in protection.

73 No two cases are exactly the same, and the individual factors in the present case vary in some details from the cases to which I have referred and to others that have been gathered together by Wood CJ at CL in his judgment in Regina v Howard [2001] NSWCCA 309. What emerges however, from an analysis of the above cases and others not referred to in argument, is that there is a range for sentences for the manslaughter of young children by persons in positions of protection and trust of between 5 or 6 years at the lower end, and ten years towards the higher end.

74 When regard is had to the fact that there is no entitlement on the part of the prisoner to any utilitarian discount that would arise from a plea of guilty, I am of opinion that a sentence somewhere around the middle of the range to which I have referred would be appropriate to reflect the inherent seriousness of a crime that involves the taking of human life, the community’s disapprobation of such a crime, the need for general (as opposed to specific) deterrence and the other factors to which I have referred above, whilst at the same time having regard to the factors subjective to the prisoner including his health, the remorse to the extent that I have found, his prospects of rehabilitation, the unlikelihood that he will offend again, the possibilities in relation to the circumstances of his incarceration and the other personal factors to which I have referred above.

75 In the light of these considerations, I am of opinion that a sentence to imprisonment for seven and a half years is appropriate.

Special circumstances

76 The prisoner is suffering from a severe, and at present incurable, familial disease the effect of which will, in the state of present medical science, be likely to shorten his lifespan, but to an unknown extent. Although this condition will be able to be treated in prison, it may have the effect of rendering his imprisonment more stressful for him. So too may the prospect of possible continuing protective custody. However, as has emerged in recent cases (for example: Regina v Totten [2003] NSWCCA 207; Regina v Scott [2003] NSWCCA 28) the extent to which this consideration will operate as a detriment may be a variable, depending on the correctional establishment in which the prisoner is held at a given time. In addition, as was said in Regina v Totten:

“What weight the circumstance should be given will depend very much on all the circumstances of the particular case.” (supra at para 44)

77 Furthermore, the prisoner suffers from depression that requires treatment, both by medication and probably by psychiatric or like counselling. All of the foregoing considerations are capable of constituting special circumstances, and in my opinion do constitute special circumstances in the present case. As a consequence, the statutory nexus between the sentence and the non-parole period provided for in s 44(2) of the Act should be departed from. In my opinion a non-parole period of four years would be appropriate.

Conclusion

78 When regard is had to the objective seriousness of the crime committed by the prisoner, the circumstances of trust and dependence in which the victim was placed, the young age of the victim and the other factors to which I have referred, I am of opinion that notwithstanding the most favourable view that can be taken of the prisoner, a substantial term of imprisonment should be imposed. It is necessary in the light of the authorities that the sentence should send a message to the community that behaviour of the kind for which the jury convicted the prisoner will attract a substantial gaol sentence.

79 In the circumstances I am of opinion that a term of imprisonment for 7 ½ years be appropriate, but that in view of the special circumstances that have been found the non-parole period should be 4 years.

Sentence

80 The sentence of the court is that James Stuart Monroe is sentenced to imprisonment for 7 ½ years commencing on 28 March 2003 and concluding on 27 September 2010. I fix the non-parole period as 4 years to commence on 28 March 2003 and to conclude on 27 March 2007, so that the prisoner will become eligible for parole on 27 March 2007.

81 I recommend that a psychiatric assessment of the prisoner be undertaken and, in the event that this confirms the opinions expressed by the forensic psychiatrist and clinical psychologist called on behalf of the prisoner at the sentence hearing, that appropriate psychiatric treatment and psychological counselling be given to the prisoner.

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Last Modified: 12/24/2004