R v Strbak

[2020] QSC 383

SUPREME COURT OF QUEENSLAND

CITATION:

R v Strbak [2020] QSC 383

PARTIES:

R
v
HEIDI STRBAK

(Defendant)

FILE NO/S:

SC No 1643 of 2016

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7, 8 and 9 October 2020

JUDGE:

Boddice J

CATCHWORDS:

CRIMINAL LAW – SENTENCE – FACTUAL BASIS FOR SENTENCE – OTHER MATTERS – where the Defendant pleaded guilty to manslaughter on the basis that she failed to provide the necessaries of life to the deceased child – where the deceased died as a result of the deliberate infliction of blunt trauma, delivered with force, on two separate occasions – where the Crown did not establish, to the requisite high standard, that the two applications of force to the deceased were delivered by the Defendant – where the Defendant was to be sentenced on one count of manslaughter on the basis of the plea of guilty

COUNSEL:

P J McCarthy QC for the Prosecution
S Holt QC for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the Prosecution
Bamberry Lawyers for the Defendant

HIS HONOUR:   Heidi Strbak, you are to be sentenced on one count of manslaughter.  The victim was your four year old son. 

To your credit, you pleaded guilty to manslaughter at an early stage.  That plea was entered on the basis you had unlawfully killed your child by failing to provide the necessaries of life at a time when he had sustained traumatic injuries to the abdomen, which caused his death. 

The Crown did not accept your plea of guilty on that basis, contending that you inflicted the traumatic injuries to your own child, albeit without an intention to cause death or grievous bodily harm. 

After a contested hearing, the Crown was found not to have established to the requisite standard that you had inflicted those traumatic injuries.  Accordingly, you are to be sentenced on the basis of your plea of guilty. 

That being so, you ought and will receive the benefit of the cooperation shown by that early plea of guilty.   By it you saved the community the time and cost associated with what would have been a lengthy trial. 

Whilst that cooperation is a significant factor in your favour, as are the facts that you have no prior criminal history and by all accounts, were a loving and caring mother to your child, your conduct involved serious criminal behaviour to your own child, who relied and depended upon you to protect him. 

You failed dismally, with the consequence that he lost his life.  I do not doubt that you grieve every day for your lost son.  His father and other loved ones also grieve that loss.  It must be especially hard for them to accept his death in such circumstances. 

Sentencing you requires a consideration of the principles of sentencing.  They are, on the one hand, to punish you to an extent and in a way that is just in all of the circumstances, and on the other hand, to provide conditions which will support and encourage any prospects of rehabilitation. 

The sentence must indicate the community’s denunciation for your criminal conduct and must protect the community. 

A failure by a parent to provide the necessaries of life to their own child is criminal conduct deserving denunciation and the sentence imposed must deter others from engaging in such behaviour. 

The fact that you are a relatively young person, with no prior criminal history, is not unusual in offending of this nature.  By its essence, it is neglect rather than deliberate criminality.

Denunciation and deterrence are necessary because young children cannot fend for themselves.  They rely and depend upon their parents. 

That being said, I accept you present as a low risk of reoffending and that you have good prospects of rehabilitation.  Further, you have shown by your pleas of guilty both cooperation and remorse.  They are all factors properly to be taken into account on sentence. 

Balancing the relevant factors, I am satisfied that a sentence which would properly reflect the relevant sentencing principles is a sentence in the order of seven years’ imprisonment. 

That sentence is higher than the notional sentence imposed on Scown.  Whilst he was in a positon of care, he was not the child’s parent. 

Your position as the child’s mother warrants a heavier sentence.  Your failure to provide the necessaries of life to your own child represents a far greater breach. 

There is, however, another factor relevant to sentencing you for this offence. 

You have now served some 1148 days, a little over three years, in actual custody. 

That is more time than you would have been ordered to serve had you received a sentence in the order of seven years’ imprisonment, but been given an eligibility date for parole that properly reflected the cooperation and remorse shown by your plea of guilty.

Allowing for that fact and ensuring that you receive a just and proper recognition for the cooperation and remorse shown by your plea, the appropriate sentence is a sentence of five years’ imprisonment, suspended after having served the 1148 days in custody, which will be declared as time served, for an operational period of five years. 

Whilst that sentence does not require that you be subject to formal supervision, it will have a significant deterrent effect.  You will be liable to serve the balance of that suspended sentence, should you commit an offence punishable by imprisonment, during the operational period of five years. 

The law provides the starting point, should you breach that suspended sentence, is that you be ordered to serve the whole of the balance of that sentence. 

If you breach the terms of the suspended sentence you will be brought back before the Court.  You will be brought back before me.  You would understand that I will take the view that I have given you particular leniency in the circumstances. 

Heidi Strbak, in respect of the count of manslaughter, you are convicted and sentenced to five years’ imprisonment.

I declare the 1148 days you have served in custody between 13 August 2015 to 16 September 2015 inclusive, and 17 November 2017 to 3 December 2020 inclusive, as time served in respect of that sentence of imprisonment. 

Allowing for that time served, your plea of guilty and your prospects of rehabilitation, I order that the sentence of imprisonment be suspended, after having served 1148 days in custody, for an operational period of five years. 

I record a conviction in respect of that count.