R v Smith

[2013] NSWSC 796

Supreme Court

New South Wales

Medium Neutral Citation:

R v Smith [2013] NSWSC 796

Hearing dates:

15 February, 1 and 15 March 2013

Decision date:

03 May 2013

Jurisdiction:

Common Law - Criminal

Before:

Latham J

Decision:

Convicted of the offence of manslaughter. Sentenced to a fixed term of seven (7) years to date from 22 April 2011 and to expire on 21 April 2018.

Convicted of the offence of accessory after the fact to murder. Sentenced to a non-parole period of nine (9) years to date from 22 April 2014, to expire 21 April 2023. Balance of term of four (4) years to expire 21 April 2027.

The aggregate sentence is one of sixteen (16) years with a non-parole period of twelve (12) years. Eligible for release on 22 April 2023.

Catchwords:

CRIMINAL LAW - sentence - guilty plea - manslaughter by gross criminal negligence - accessory after the fact to murder - duty of care as a parent - failure to seek medical treatment for child - top of the range of objective gravity for gross criminal negligence - worst case category for accessory after the fact to murder - general deterrence

Category:

Sentence

Parties:

Regina - Crown
Robert Smith - Offender

Representation:

Counsel
L Alder - Crown
M Austen - Offender
Solicitors
Solicitor for the Director of Public Prosecutions - Crown
D Velcic - Offender

File Number(s):

2011/133222

SENTENCE

1. The offender, Robert Smith, pleaded guilty in the Local Court on 16 December 2011 to the manslaughter of his de facto partner's six year old daughter by way of gross criminal negligence and to being an accessory after the fact to her murder. Those pleas were confirmed on arraignment in this Court on 3 February 2012.

1. The manslaughter was committed on 13 July 2010, while the accessorial offence was committed between 13 July 2010 and 21 April 2011. Each offence carries a maximum penalty of 25 years' imprisonment.

1. The offender is to be sentenced on the basis of the following agreed facts.

The Offences

1. The offender, who is now 34 years of age, commenced a relationship with Kristi Abrahams in 2006. Ms Abrahams had a daughter, the deceased, who was born on 22 April 2004 during her relationship with her former partner. That relationship ended following an assault by Ms Abrahams on the deceased on 3 July 2005. The child's father reported the assault to the police. Ms Abrahams was charged with assault occasioning actual bodily harm, was convicted of that offence on 1 May 2006 in the Local Court and released on a section 9 bond for a period of 12 months.

1. The deceased was placed into foster care for a period of 18 months. Ms Abrahams was directed to enter into a parental care plan and to attend anger management and counselling programs. Ms Abrahams was allowed supervised access to the deceased.

1. The deceased was restored to Ms Abrahams' custody on 23 December 2006. At that time, Ms Abrahams and the offender rented premises in Mt Druitt, being a two-bedroom unit on the first floor. The offender adopted the role of father to the deceased and thought of himself as her father. The offender and Ms Abrahams subsequently had two children together, one born on 9 February 2008 and another born 7 July 2010. The deceased occupied one bedroom of the unit while Ms Abrahams and the offender shared the second bedroom with the other two children.

1. At about 9:30am on 1 August 2010, Ms Abrahams called 000 and reported the deceased missing from her bedroom and the front door of the unit open. She told police that the offender was searching for the missing child. Police undertook a large-scale search and investigation but the deceased could not be found.

1. Ms Abrahams and the offender were interviewed by police on two occasions, namely in August and September 2010. They each gave false accounts of the deceased's disappearance. Both of them maintained that the offender bought dinner from Westfield shopping centre at Mt Druitt on Saturday, 31 July 2010. It was said that the family ate dinner and watched a movie, namely "The Golden Compass" on Channel 9. They maintained that they put the deceased to bed at about 9:30 pm. Ms Abrahams said that she fed the baby and took him to bed at about 11 pm. The offender joined her shortly thereafter.

1. They further maintained that they woke up during the night to feed the baby. The offender said that he had prepared a bottle of milk whereas Ms Abrahams claimed that she breastfed the baby. Ms Abrahams maintained that she discovered the deceased missing from her bedroom at about 9:30 am as she was returning from the toilet. She claimed that she woke the offender to look for the deceased while she rang 000. The offender told police that he was yelling out the deceased's name throughout the neighbourhood, although none of the neighbours heard or saw anything consistent with the offender's version of events.

1. CCTV footage of the neighbourhood on 1 August 2010 depicts the offender casually walking through Westfield shopping centre at Mt Druitt at about 10:40 am. Thereafter, neither the offender nor Ms Abrahams assisted police in any further searches.

1. The offender claimed in the course of his interview that the deceased was a normal happy child and that Ms Abrahams' parenting was in no way inappropriate. The offender said that Ms Abrahams did no more than administer "a little smack" to the deceased if she had misbehaved. He described the relationship between Ms Abrahams and the deceased as "good" and denied that he or Ms Abrahams would do anything to harm the child.

1. The investigation generated a significant amount of national media interest. Initially the offender and Ms Abrahams refused to speak with the media. However, on 3 August 2010 they made their first television appearance outside Mt Druitt police station. The offender spoke on Ms Abrahams behalf and asked for anyone who knew anything to come forward and contact the police. The offender expressed the hope that the deceased was found as soon as possible and that she was safe and well. He said that it was more difficult to cope with her disappearance the longer she was missing and that he had no idea who might have taken the child.

1. The offender and Ms Abrahams took part in a number of media interviews including an article published in "Who" magazine. The offender made a number of comments in the course of that article, namely that he looked everywhere for the child, that it was difficult dealing with the media reports because "you couldn't do anything to harm your daughter in that way", that he had nothing to hide and that if he knew where the child was he would not be sitting in the interview room.

1. On 6 August 2010 in an ABC media interview the offender said that the police had identified him as a key suspect. He said that "there is no way in the world" that he would cause harm to the child. The following day in a Daily Telegraph interview, the offender again denied having anything to do with the child's disappearance.

1. The versions provided by the offender and Ms Abrahams relating to the disappearance of the child were repeated to a number of DOCS officers after August 2010.

1. Both of the offender's and Ms Abrahams' children were removed from their care on 20 April 2011 as a result of a number of developments in the investigation of the deceased's disappearance. These developments included the detection of the presence of the deceased's blood throughout the unit and the availability of evidence from witnesses who saw bruising and injuries on the deceased while she was in the offender's and Ms Abrahams' care.

1. As a result of a covert police operation that included recorded conversations between an undercover operative and the offender, telephone intercepts, surveillance and listening devices, it became apparent on 21 April 2011 that the child received an injury in the evening of 13 July 2010 that resulted in a loss of consciousness. It will be the Crown case in a forthcoming trial against Ms Abrahams that Ms Abrahams was responsible for that injury.

1. The offender's account to the undercover operative was that he was changing the nappy of one of the other children in the lounge room while Ms Abrahams and the deceased were in the deceased's bedroom. He said that he heard "a loud bang" coming from the deceased's bedroom. He entered the bedroom and saw the child lying on the bedroom floor, breathing but unconscious.

1. The offender said that he panicked and did not know what to do. He said that he was trying to wake the child but was unsuccessful. He said that the child was still breathing at this stage and that he tried everything for "half the night" but the child would not wake. Ms Abrahams placed the child in bed and the offender and Ms Abrahams retired for the night.

1. The next morning, the offender went to work. When he came home the child was dead. Ms Abrahams was still with the child at home. Later that day, Ms Abrahams and the offender took a suitcase from the garage, placed the child's body in the suitcase and placed the suitcase in the child's bedroom.

1. The body remained in the suitcase in the bedroom for a number of days while they decided how they were to dispose of the body. The offender rode his bicycle to nearby bushland to locate a suitable burial site. When he had done so, he dug a shallow grave with a hammer which he subsequently cleaned and threw away. The bicycle was also cleaned to remove any traces of the grave site.

1. At about 5:30 am on Sunday, 18 July 2010, the offender called a taxi and told the operator to collect them from a false address. The offender also provided to the operator a false address as the destination. However, when the taxi arrived the offender corrected that destination and placed the suitcase containing the child's body into the boot of the taxi. Both Ms Abrahams and the offender disguised their appearance for the purposes of this journey.

1. The taxi travelled to Freya Crescent, Shalvey where Ms Abrahams and the offender, who was carrying the suitcase, got out of the taxi and walked for approximately 30 minutes along a number of fire trails to the grave site that had previously been prepared by the offender. The grave site was marked with a pouch which the offender had found nearby. It is suggested that the object was placed on top of the grave by the offender in order to deflect investigators in the event that the grave site was found.

1. The child's body was placed in the grave and the offender poured a bottle of petrol onto the body which he ignited. He threw the bottle into the fire and filled in the grave. The suitcase was carried a short distance away and set on fire.

1. The offender and Ms Abrahams remained in the area for about an hour. They left together in a taxi at about 7 am from Sedgman Crescent Shalvey. They were driven back to the vicinity of the unit.

1. The offender returned to the grave site alone a couple of days later to ensure that the suitcase was fully burnt. He threw the wire frame of the suitcase into the bush.

1. The offender and Ms Abrahams threw out the shoes and clothing that they were wearing when they buried the deceased's body and destroyed their mobile telephone sim cards. However, police retrieved deleted SMS text messages from the offender's phone and from Ms Abrahams' phone. Those text messages included one between Ms Abrahams and the offender on 23 July 2010 wherein Ms Abrahams asked the offender if he still loved her. The offender replied : "U need to remember what I said."

1. On 28 July 2010, Ms Abrahams purchased items purportedly intended for the deceased, including a Tinkerbell poster and some toys.

1. After giving this account to the undercover operative, the offender and Ms Abrahams took the undercover operative to the deceased's grave site in the expectation that he would assist them in removing and disposing of the deceased's remains to avoid any implication in her death. Ms Abrahams and the offender were arrested at the grave site on 22 April 2011. Police found the deceased's remains in a shallow grave. The remains were taken to the Glebe morgue where a post mortem was carried out.

1. The results of the post mortem confirmed that the deceased was the victim of long-term physical abuse leading up to the night of the injury. There were several sharp edged fractures to the teeth, indicative of a recent injury, possibly sustained by forcible closure of the mouth during a blow to the head or a similar trauma. Several bony injuries suggested repeated assaults over the weeks and months prior to the deceased's death. These injuries were generally only found in the remains of children who suffered from "severe physical abuse". The condition of the body precluded a finding as to the cause of death.

1. A specialist odontologist reported that the fracturing of the teeth appeared to be recent and consistent with trauma during life rather than post mortem. The pattern of distribution of the fractures was said to be consistent with the lower teeth being forced up against the upper teeth. The type and degree of force required to cause such fracturing of the enamel was said to be consistent with a contact sport blow or from jumping from a height and landing heavily on the ground. There were indications from the remains that the body had been disturbed by scavengers such as a dog or fox.

The Objective Gravity of the Offences

1. The manslaughter offence is based upon the duty of care owed by the offender towards the deceased as her stepfather and, by his own admission, as a parent. The offender breached that duty of care by failing to seek medical treatment at the time of the incident on the evening of 13 July or immediately thereafter, knowing that the deceased had suffered a significant injury. The offender failed to seek medical treatment for the child at any time. His failure to seek that treatment and his complete disregard for the welfare of the child, evidenced in particular by his decision to go to work on the morning following the injury, constitutes gross criminal negligence of a very high order.

1. There are several factors relevant to the objective gravity of this offence. The offender came into the life of the deceased when she was two and a half years of age. The circumstances surrounding the restoration of the deceased to Ms Abrahams in December 2006 brought to the attention of the offender the circumstances under which she had previously been removed from Ms Abrahams' care. The post mortem provides cogent evidence to the effect that the deceased was repeatedly injured over the weeks and months prior to her death. That conclusion is also reinforced by the evidence of witnesses from the neighbourhood who observed bruising to the deceased during her short life.

1. These factors establish to my satisfaction beyond reasonable doubt that the offender was aware of his partner's physical abuse of the deceased for some period of time before 13 July 2010. It is against this background that the offender's failure to seek medical attention for the child immediately after he became aware that she was unconscious, or on the following day, ought be assessed. Notwithstanding the offender's claim that he was not aware of the precise nature of the injury to the deceased on the evening of 13 July 2010, a loss of consciousness in a six-year-old child, whose physical condition was already compromised by repeated trauma, would move all but the most callous and unfeeling of adults to seek out urgent medical attention, let alone one who claimed that he regarded the deceased as a daughter.

1. I reject out of hand any suggestion that the offender was so overborne or intimidated by Ms Abrahams that his judgment was compromised against acting in the child's interests. This is a subject to which I will return when discussing the offender's subjective circumstances. I acknowledge that Ms Abrahams appeared to be the dominant partner in the relationship, and that she was violent towards him, according to the offender, as well as towards their children. However, the offender is a mature male who was gainfully employed, of average intelligence, with no relevant drug or alcohol issues while he was in the relationship, and was acutely aware of the deceased's vulnerability. He made a simple and cowardly choice that favoured his relationship with Ms Abrahams over the needs of a gravely injured child. I n other words, he acted more out of loyalty to Ms Abrahams than out of fear of reprisal from her for calling for medical assistance.

1. The offender stands to be sentenced on the basis of his failure to act, not on the basis that his conduct injured the deceased and thereby lead to her death. Nonetheless, in circumstances where this helpless and vulnerable child depended for survival as much on the person who stood by and did nothing, as upon the person who assaulted her, it is a rather fine distinction.

1. In my view, this offence stands towards the top of the range of objective seriousness comprehended by this species of manslaughter. By "species of manslaughter", I mean to refer to gross criminal negligence manslaughter.

1. The objective gravity of the offence of accessory after the fact to murder falls to be assessed by reference to the conduct of the offender between 13 July 2010 and 21 April 2011. That conduct included :-

(i)   Planning and carrying out the acts relating to the disposal of the deceased's body, including placing the body in the suitcase, locating a grave site, preparing the grave, carrying the body in the suitcase to the grave, burning the body, and destroying evidence from the grave site.

(ii)   Destroying and removing evidence capable of implicating him and Ms Abrahams in the offence, including destroying the clothing and shoes worn for the purposes of disposing of the deceased's body, providing false information for the purposes of the taxi journeys to and from the offender's home and the destruction of mobile phone sim cards.

(iii)   Providing a series of ongoing false accounts to police regarding the deceased's disappearance.

(iv)   Providing a series of ongoing false accounts to media outlets and to DOCS designed to direct attention away from himself and Ms Abrahams and to implicate unknown persons in the child's disappearance.

1. The offender's assistance to Ms Abrahams in an attempt to prevent her arrest and prosecution for the murder of her own child was extensive, lengthy and potentially effective. The offender assumed the primary role in the disposal and destruction of the deceased's body, the destruction of evidence and in the maintenance of a false account to the authorities and to the public at large. The act of burning the body was particularly heinous, given the difficulty of ascertaining a definitive cause of death at post mortem.

1. It is pertinent to reflect upon the offender's determined and sustained course of conduct over a period of nine months following the death of the child. Within two days of her death, the offender assiduously applied himself to the execution of a plan which was designed to destroy any evidence linking Ms Abrahams to that event, the centrepiece of which was the implied allegation that an unknown person was responsible for the child's disappearance. The offender persisted in playing the role of distraught parent, not just for the purposes of the police investigation but also for the media, all the while knowing what he had done. These were not spontaneous, ill-considered acts carried out in panic such as are usually encountered by the courts when dealing with this offence in the context of a relationship.

1. I accept the Crown's submission that this offence is in the "worst case" category. I am unaware of any case of accessory after the fact to murder that approximates the objective gravity of this offence. Moreover, it is difficult to envisage what more the offender could have done, that might further elevate the objective criminality.

1. It is important to recognise that the commission of this offence stands apart from the manslaughter offence. There is very little overlap between the criminality inherent in each offence. Moreover, in my view the objective gravity of the accessorial offence is greater than that of the manslaughter.

The Offender's Subjective Circumstances

1. At the time of the offences the offender was 31 years of age. His criminal history consists of summary property offences and motor vehicle offences for which the offender largely received fines, community service orders and bonds. In June 2002 the offender was sentenced to 15 months' imprisonment with a nine-month non-parole period in respect of an offence of maliciously inflict grievous bodily harm with intent.

1. The only material provided on the offender's behalf on sentence was a report from a clinical and forensic psychologist, Dr Mark Milic, dated 10 December 2012 and a report by a consultant forensic psychiatrist, Dr Richard Furst, dated 8 February 2013.

1. The following history provided by the offender to both of the authors of these reports was not confirmed by evidence from the offender.

1. The offender is the middle child of three boys whose parents separated when he was 15 years of age. His mother formed a new relationship when the offender was approximately 16 years of age. His mother's partner treated him well and he came to regard him as a father figure.

1. The offender received an uneventful education and described himself as a mediocre student. However, he did well in agriculture and in design and technology. He completed his Higher School Certificate. He complained of some bullying at school.

1. On leaving school he worked briefly as a cashier in a supermarket. There followed a lengthy period of unemployment during which he drank to excess and felt depressed. He worked as a store person from 2004 up to his arrest. He described that work as enjoyable, although he worked long hours because of amalgamated workshifts and overtime. He was appointed to the position of leading hand, taught to use the computerised order management system and told that he was regarded sufficiently well to become a supervisor. The company moved to Penrith, which increased the offender's travel time and contributed to a general lack of sleep. In 2009 he received a redundancy package. One month later he was employed by Woolworths in a liquor warehouse.

1. The various psychological and psychiatric assessments of the offender indicate that he has an immature and passive personality style with limited capacity for self reflection. He is presently diagnosed with depression, low self-esteem and high levels of ambivalence and avoidance. The offender's description of his adolescence and early adulthood was said to be consistent with a chronic low mood, low self-esteem and a lack of self confidence.

1. Dr Furst was specifically asked whether there were any symptoms or conditions currently present that are related to the offences. Dr Furst suggests that the offender's passive personality style, low self-esteem and the trauma associated with regular abuse in his relationship created a type of "learned helplessness" and high levels of anxiety, which prevented him from leaving Ms Abrahams. Dr Furst goes on to say that the offender's failure to seek help for the child :-

may well have been caused by his fear of how Ms Abrahams would react, including a fear of his partner becoming violent towards him. Although this may help explain his initial failure to act, he continued to lie to police and other authorities after the offence in question and his efforts to conceal the offence were probably calculated and deliberate.

1. The first qualification to this opinion concerns the extent to which the Court can rely upon untested assertions by the offender that he was regularly subject to physical abuse by Ms Abrahams in the course of the relationship. The offender described the abuse taking place on a weekly basis, and as many as three times per week. To Dr Milic, the offender maintained that there were occasions when there would be two months between arguments.

1. He describes periods of tension within the relationship which would culminate in Ms Abrahams throwing household items at the offender, such as photo frames. He claimed to Dr Milic that he had suffered a number of black eyes after being punched by Ms Abrahams. He referred to Ms Abrahams' habit of locking the front door so that he could not escape when their arguments began. On one occasion, the offender claimed that he was so desperate to escape an argument with Ms Abrahams that he jumped from the balcony of their first-floor unit. The offender claimed that he sustained severe injuries to his feet and that he was on crutches for two to three weeks. On another occasion, Ms Abrahams confronted the offender with a knife and accidentally cut him above the left elbow. The offender maintained that there were occasions when he left home to stay with his mother, although he always returned. In this regard, I note that Dr Milic interviewed the offender's mother, yet there was no reference by her to occasions when the offender came to stay at her home.

1. None of this history was even hinted at in the course of the conversations with the undercover operative, nor did the offender indicate at any time that he was unhappy in the relationship. To the contrary, he told the undercover operative that he was going to "stick by" Ms Abrahams. These were all unguarded conversations.

1. The second qualification is that, despite Dr Furst's link between the alleged violence in the relationship and the offender's failure to seek medical help, Dr Furst himself acknowledges that the subsequent course of conduct by the offender was probably calculated and deliberate. With due respect to Dr Furst, the facts that I have related above establish that the offender's conduct was certainly calculated and deliberate.

1. In the absence of evidence confirmatory of the offender's account of the extent of Ms Abrahams' violence towards him, I am prepared to accept that Ms Abrahams was volatile, argumentative, domineering and verbally abusive towards the offender, and that on occasions she threw objects and broke household items. However, I do not accept that her physical violence towards him was as frequent or as serious as the offender has described to the respective doctors. I do not accept that there was anything so dire about the offender's circumstances, that his moral culpability for either offence is reduced.

1. I accept that he requires treatment for depression in the prison system, but that is as much a product of his incarceration for these offences as it is his pre-existing condition. He will likely spend a significant portion of his sentence in protective custody, so that some modest allowance ought be made for the additional deprivations he will thereby suffer.

Other Considerations

1. The nature of these offences calls for some emphasis to be given to the principle of general deterrence in the sentencing exercise. It is important that the sentence reflects the seriousness with which the law regards a breach of parental duties and responsibilities with respect to the welfare of a young child entrusted to the offender's care. It is also vital that the sentence for the accessorial offence conveys the gravity of the offender's conduct in assisting Ms Abrahams to escape liability for her role in the death of the child. The retributive aspect of this sentencing exercise is also prominent.

1. Specific deterrence has lesser weight in the light of the relatively minor nature of the offender's criminal history. However, given that the offences were committed in the context of a relationship, there remain some concerns that the offender's appreciation of parenting responsibilities is secondary to his own emotional needs. His expressions of remorse to the psychologist and psychiatrist centred on his failure to help the deceased, and to a lesser extent on his maintenance of the lies told to police and the media. His primary concern with respect to telling the police the truth was the consequences to himself, that is, Ms Abrahams' likely reaction. These factors reinforce the conclusion that the offender is immature and lacking in insight. In those circumstances his remorse is significantly qualified.

1. His prospects of rehabilitation are reasonably sound, provided he develops further insight into his offending conduct. The offender is entitled to a discount of 25% for the early plea of guilty.

1. Taking into account the above objective and subjective factors, I would impose a head sentence of seven years for the manslaughter offence and a head sentence of twelve years for the accessorial offence. Despite the fact that there is little overlap in the criminality inherent in each offence, there are considerations of totality at play. The offender has not previously served a lengthy prison term, he is still a relatively young man and a complete absence of concurrency would give rise to a disproportionate sentence. Accordingly, there ought be a measure of partial concurrency.

1. I do not consider that a finding of special circumstances is warranted. I have taken the offender's custodial conditions into account in fixing the appropriate head sentence and any lesser non-parole period than that prescribed by the legislature would fail in my view to adequately reflect the offender's criminality. The balance of the aggregate term will in any event provide the offender with sufficient time to address his reintegration into the community.

1. Robert Smith, you are convicted of the offence of manslaughter. I sentence you to a fixed term of seven (7) years to date from 22 April 2011 and to expire on 21 April 2018.

1. You are convicted of the offence of accessory after the fact to murder. I sentence you to a non-parole period of nine (9) years to date from 22 April 2014, to expire 21 April 2023. I fix a balance of term of four (4) years to expire 21 April 2027.

1. The aggregate sentence is one of sixteen (16) years with a non-parole period of twelve (12) years. You are eligible for release on 22 April 2023.

Decision last updated: 30 July 2013