R v Ross

[1996] QCA 411

IN THE COURT OF APPEAL	[1996] QCA 411
SUPREME COURT OF QUEENSLAND

C.A. No. 347 of 1996

Brisbane

[R. v. Ross]

T H E Q U E E N

v.

ANNE MAREE ROSS

(Applicant)

Moynihan J. Mackenzie J. Cullinane J.

Judgment delivered 25/10/1996

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:SENTENCE - manslaughter - unlawful killing of a child - 21 year old mother suffocated seven week old son - whether sentence manifestly excessive

Counsel:	M. Irwin for the applicant T. Martin for the respondent
Solicitors:	Legal Aid Office for the applicant Qld Director of Public Prosecutions for the respondent

Hearing date : 3 October 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25 October 1996

This is an application for leave to appeal against a sentence of six years' imprisonment, with a recommendation of eligibility to be considered for parole after 18 months, in respect of an offence of manslaughter. The sentence is said to be manifestly excessive. The applicant had originally been charged with murder, a plea of guilty to manslaughter was accepted on the basis that there was no intent to cause death or grievous bodily harm.

The applicant was a young woman, 21 years of age, at the time of the commission of the offence. On 22 November 1994 she suffocated her son who had been born on 3 October 1994. The pregnancy was the unintended result of a casual act of sex after a meeting at a nightclub. The applicant and the father had no further involvement, she in fact paid her brother to be present at the birth.

The applicant had an unfortunate childhood which had not equipped her for parenthood; apart from anything else the state of relations between her parents, and their conduct meant the applicant had no parenting model on which to base her dealing with the child. She left home at 17. Notwithstanding the difficulties referred to, her father and disabled sister moved in with her after the birth and her father provided assistance in caring for the child although it may be doubted that this would have lasted. It seems that he had become concerned about her shows of temper and frustration directed at the child.

It is clear that the applicant had increasing difficulty in being the mother of a young child particularly in dealing with the child's persistent crying. She increasingly resented in the interference the need to care for the child imposed on the lifestyle she had been leading prior to her pregnancy. This apparently largely revolved around nightclubs. On the other hand, the child was well-nourished and bore no signs of prolonged ill-treatment. The applicant initially denied killing the child but after speaking to her father she made a full disclosure.

On the night of 21/22 November 1995 the applicant could not get the child to sleep. After what appeared to have been extended endeavours to settle him down the applicant wrapped the child tightly in a bunny rug to confine his movements and held his face down into a pillow for what may be accepted as an appreciable time, so suffocating him.

Reference was made before us to reports by Doctors Reddan and Sundin who are consultant psychiatrists. Dr Reddan's report was written in the context of the applicant's having been charged with murder and it essentially addressed the issues of capacity, intention and diminished responsibility. Dr Sundin had seen the applicant early in 1995 on a reference from her general practitioner. The sentencing judge dealt with the applicant on the basis that Dr Reddan's report in particular diminished the extent of the applicant's responsibility to a substantial degree but it did not provide total justification "by any means". He pointed out that it was substantially based on the applicant's version of events from her particular perspective.

Doctors Reddan and Sundin concluded that at the time she killed the child, the applicant was suffering from an adjustment disorder with mixed disturbance of emotion and conduct as a consequence of the birth of the child and of the circumstances in which she then found herself. This led to excessive anger and frustration. There was no major depression or significant post- partum depression.

When she came to be sentenced, the applicant was living in what was described as support accommodation run by a church organisation and was receiving counselling and other support.

In sentencing the applicant, the trial judge specifically adverted to the following

considerations:

1.The case was a sad one.

2.That there were matters to the applicant's discredit, including egoism, self-satisfaction and a "new toy" attitude to the child, and the rapid deterioration of a measure of normal maternal love into resentment and rough ill-treatment, because the child was a burden on her capacity to enjoy herself;

3.That, while those burdens would have seemed meaningful to the applicant, she had the support of her father, and there was a substantial element of selfishness in her unwillingness to accept her proper responsibilities;

4.That the psychiatric report diminished the extent of the applicant's responsibility to a

substantial degree but did not provide total justification;

5.That (after advice from her father) the applicant acknowledged guilt and indicated an

early willingness to plead to manslaughter;

6.That there will be some degree of difficulty in respect of her imprisonment, because of

the need to protect her;

7.That her circumstances as a single mother were regrettably common, as were the consequential

burdens and stresses, but that children must be protected;

8.That, to the extent that there were features of the case for which she bore responsibility,

the applicant must be punished, and that punishment must act as a deterrent.

It cannot be gainsaid that those are relevant considerations and some are matters of the sentencing judge's impression of the applicant. On the other hand, the factors identified in 2 are a reflection of the applicant's difficulty in dealing with her situation with the consequent adjustment disorder.

Although in Walsh (unreported C.A. No. 85 of 1986, judgment delivered 12 June 1986) the Court of Criminal Appeal proceeded on the basis of being informed that there was a sentencing range of between perhaps 5 and 10 years for manslaughter, it appeared to have reservations as to whether it could accurately be said there was such a range. Indeed this Court in Auberson (unreported C.A. 248, 249 of 1996, judgment delivered 3 September 1996) referred to the difficulties in identifying a sentencing pattern for manslaughter because of the variety of circumstances in which that offence is committed.

Cases involving the unlawful killing of a young child range through circumstances from killing in the course of systematic gratuitous abuse, (usually by a defacto), killing because of accumulated frustrations or a single occasion of frustration, to killing by a mother who is mentally disturbed as an aftermath of the birth.

Walsh (supra) was a case of a young man who in rage and frustration either shook to death the 16 month old child of the woman with whom he had been living or killed the child by blows. There were severe injuries. The Court refused to interfere with a sentence of nine years. Korin (unreported, C.C.A. No. 85 of 1986, 12 June 1986) was similar in outcome to Walsh (supra) (an appeal against a sentence of 9 years was dismissed). In Korin there was a course of considerable violence over some months. There was a schedule under s.189 of the Penalties and Sentences Act 1992 of other offences of violence committed on the child before the Court. Korin was a defacto husband. In both Walsh and Korin the Court considered that other judges "may have taken a different view" but declined to interfere on the basis that the sentence was manifestly excessive.

Our attention was directed to Mills (1986) 1 Qd.R. 77 and Bourke (1987) 28 A.Crim. R. 216. In each of those cases, an appeal against conviction was pursued while an application for leave to appeal against sentence was abandoned. Mills was sentenced to 10 years without a recommendation and Bourke to 6 years with a recommendation after 2. The outcomes reflect the particular factual circumstances. The abandonment of the application for leave to appeal against sentence adds no weight one way or another to the sentence imposed at first instance.

It may also be accepted that the factual circumstances in Walsh, Korin and Mills were more serious from the perspective of sentence than those in the present case. While Bourke was rather more comparable the conduct was arguably more prolonged and more severe; there are also other differentiating features.

On the other hand, Leef (unreported, single judge, 3 April 1989) was a case of a young woman who shook to death a child who was a month old after she had become angry and frustrated with her. A post-mortem shows that death was due to multiple trauma. Some of the injuries were of "one or two weeks duration" others "one or two days". Leef was a young woman who had a child as a result of a relationship with a married man and was in difficult personal circumstances manifesting traits of personality disorder in the form of dependency, immaturity, poor tolerance and control of aggressive impulses. It thus has features in common with this case.

Having regard to the seriousness of the offence, the unlawful killing of a defenceless child and to the other features referred to and accepting that it is difficult to say that the cases establish a sentencing pattern, it is difficult to conceive of a more favourable sentencing outcome than Leef.

It is particularly difficult to strike the right sentencing balance in cases such as this. As was pointed out in Auberson (ante) the difficulty in identifying a sentencing pattern emphasises the importance of an appellate court not interfering with a trial judge's exercise of the sentencing discretion; "except where that course is plainly warranted because the sentence is outside the sound exercise of the sentencing discretion". We are not persuaded that has been demonstrated here. We would refuse leave to appeal against sentence.