Regina v NLH
[2010] NSWSC 662
•17 June 2010
NEW SOUTH WALES SUPREME COURT
CITATION:
Regina v NLH [2010] NSWSC 662
JURISDICTION:
FILE NUMBER(S):
2009/7989
HEARING DATE(S):
11, 15, 16 June 2010
JUDGMENT DATE:
17 June 2010
PARTIES:
Regina
NLH
JUDGMENT OF:
R A Hulme J
LOWER COURT JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not Applicable
LOWER COURT JUDICIAL OFFICER:
Not Applicable
COUNSEL:
Ms J Baly (Crown)
Ms T Evers (Offender)
SOLICITORS:
Solicitor for Public Prosecutions
Rice More & Gibson
CATCHWORDS:
CRIMINAL LAW
sentence
manslaughter
unlawful and dangerous act
7 week old baby by 18 year old mother
post natal depression
isolation
victim of domestic violence
plea of guilty
assistance to authorities
LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
CATEGORY:
Sentence
CASES CITED:
TEXTS CITED:
DECISION:
Sentenced to imprisonment for 4 years 2 months with a non-parole period of 2 years 6 months.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LISTR A Hulme J
17 June 2010
2009/7989 Regina v NLH
JUDGMENT
HIS HONOUR: The offender stands for sentence for the crime of manslaughter, having killed her seven week old baby in a fit of anger on 4 May 2006.
Nothing may be published that would identify the child, or his older sister. That includes the names of his parents: s 15A Children (Criminal Proceedings) Act 1987.
Facts
There is a statement of agreed facts before me from which I have derived the following.
The offender and PC commenced a relationship when she was 16, she having been born in January 1988. He was six years her senior. She became pregnant and their daughter, PJC, was born in February 2005. PJC was taken into the care of the Department of Community Services at a time when the offender and PC were living in a car and unable to provide adequate parental care. She was returned to them in late 2005. The offender was pregnant again at this stage.
Sometime in the latter half of 2005 they moved into a vacant house on a property known as “Glen Oval” some 20 kilometres from the township of Bingara. The offender gave birth to TC on 19 March 2006 at Bellingen Hospital. The offender and PC had been staying at her mother’s house at Toormina but moved back to Bingara at the end of March.
According to the agreed facts, although the offender loved TC she found it hard to bond with him. She had difficulties breast feeding him and sometimes found it hard to pick him up when he cried. When he was about a month old she noticed that he was not feeding properly and was losing weight. She was the main carer but PC would sometimes feed him with a bottle. The offender was finding it hard to cope with a newborn baby and a toddler as well. PJC was only just over a year old. The offender and PC were arguing and they had very little money.
Despite these difficulties the offender never sought any medical attention for TC. She saw Dr Fisher at the Bingara Medical Centre attached to the local hospital on 11 April 2006. Dr Fisher inquired about TC, who she had left at home, and she replied that he was feeding well and that there were no problems.
On Thursday 4 May 2006, PC left the property, leaving the offender alone with PJC and TC. She was angry and upset that PC had left her alone and she felt unable to cope with the two children. She was angry when she walked into the lounge room where TC was lying in his bassinette. He was crying. She yelled at him to stop but he continued crying. She took hold of the bassinette and shook it, saying, “Shut up, shut up for a minute”. He continued crying. She picked him up and immediately threw him back down into the bassinette. The bassinette was about a metre away and she threw him with force. The frame in which the wicker bassinette sat shook and was unsteady. TC continued to cry. She then stepped closer and pushed the bassinette forcefully with both her hands. The bassinette rolled backwards quite quickly and fell over. The frame fell on its side but the bassinette remained upright with TC still within it.
The offender immediately went to another room in the house where she cried for about ten minutes before returning. The baby was lying on his back in the bassinette and the offender thought that he was dead. She tried to find a pulse but did not know how to. She then noticed that he was breathing. She picked up the bassinette and moved it next to the heater. Two of the metal legs of the frame were bent so she took the frame out of the house and placed it in a shed.
Sometime later the offender rang PC. When he came home she told him what she had done. He became angry and said that they should get medical attention for TC. She took him outside and showed him the bassinette frame in the shed. He then assaulted her by pushing her and placing his fingers around her neck.
There was a further discussion about what they should do. It was decided that PC would take the baby into Bingara the next morning for medical attention. They decided that the doctor would be told that the baby’s bassinette had fallen over and he had fallen out and hit his head. I infer from this that they realised that he had suffered a head injury. They did not want to call an ambulance because they did not want anyone to know what had happened.
TC remained in the lounge room in his bassinette overnight. PC would not allow the offender to be alone with him.
The next morning the offender took the baby out of his bassinette sometime between 9am and 10am. She immediately noticed that his breathing was shallow. She and PC took him to the kitchen where he was given a bath in the sink in an attempt to wake him up. His body was floppy and limp and his head kept falling backwards. His eyes were open but were rolling back in his head.
Some telephone calls were made. The baby’s breathing became worse. They put him into their car and drove to Bingara where they stopped to purchase fuel. They then proceeded to drive towards Inverell, driving past the turnoff to Bingara hospital which was only 400 metres away.
TC stopped breathing a short time later. They stopped. PC performed CPR on the baby while the offender flagged down a passing motorist who called an ambulance.
The baby was first taken to Bingara hospital where Dr Fisher noticed extensive bruising across the forehead. The offender told her that her daughter, PJC, had caused the bruising.
TC was transferred to Tamworth hospital where he died in the early hours of Saturday 6 May 2006. It had been proposed to transfer him to the John Hunter hospital in Newcastle but it was too late.
The offender was interviewed by police that morning. She blamed PJC for the injuries TC had sustained. She gave the same explanation in a further interview a month later. She also said that the bassinette frame had become bent when she had overfilled the baby’s bath with water.
An autopsy was performed by Professor Timothy Lyons. He determined the cause of death to be a severe closed head injury as a result of a bilateral fracture to the skull. It was also observed that the baby was markedly malnourished. He had also sustained a number of other injuries including abrasions to his ear, neck, chin and left knee. There were also healing fractures of the 6th and 7th ribs and a healing fracture of the right radius. The rib and wrist fractures had been sustained approximately two weeks prior to death. Professor Lyons was of the opinion that the injuries displayed a pattern of child abuse.
The statement of agreed facts includes that blood with the same DNA profile as the deceased’s was located on a wall of the lounge room and on items of clothing including a baby’s jumpsuit, beanie and singlet.
Dr Kieran Moran, consultant paediatrician, was of the opinion that the baby died as a result of blunt trauma to the head and that a severe impact would have been required. It was likely that he would have developed swelling of the brain which led to his death. His chances of survival were greatly diminished by the delay in obtaining medical intervention. Life could have been prolonged, or saved, if he had received medical attention at an earlier time.
PC disposed of the damaged bassinette frame by throwing it off a cliff some weeks later. The offender was present when he did this.
The offender and PC separated some weeks after the funeral. She went to live with her mother. She formed a short term relationship with Mr Dallas Callaway. One evening Mr Callaway told her that if she or PC had done something in relation to the death of TC she needed to reveal it. The offender replied, “He has done nothing. [PC] took off to town after we had an argument and he doesn’t even know what happened. [PJC] was clinging onto my leg and he was screaming. I picked him up and threw him into the bassinette and then I picked the bassinette up and threw it. I checked on [TC] and he just went to sleep”.
When the offender also told her mother in August 2006 that she had thrown TC into the bassinette her mother contacted the police.
On 5 December 2006 the offender was arrested and charged with murder. She was remanded in custody where she remained until being released on bail on 29 May 2008. Her trial was due to commence on Monday 24 May 2010. On that day I was informed that there was some prospect of a plea of guilty being entered. The trial was stood over to the following day. On that day I was informed that the offender was making a statement to police. The trial was again stood over to the following day. On the Wednesday I was informed that there would be a plea of guilty but that certain matters needed to be attended to.
On Thursday 27 May 2010 the offender was formally arraigned. She pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment. She did not ask for bail and was once again remanded in custody.
I was informed that the Crown proposed to call the offender to give evidence in the trial of PC. For various reasons that trial was deferred, ultimately being due to commence yesterday. However, he then pleaded guilty to manslaughter. I am due to hear his case on sentence on 26 July 2010.
Clarification of facts
The Crown Prosecutor has informed me that the Crown accepts as correct the offender’s version of events, as set out in the statement of agreed facts, as to how the killing occurred. In particular, the Crown does not contend that the baby’s skull was fractured by coming into contact with the lounge room wall. The baby’s blood being on the wall is said to be attributable to some unspecified previous assault.
Further, in relation to the claim by Mr Callaway that the offender admitted to having thrown the bassinette with the baby in it, the Crown Prosecutor informed me that this was regarded as “an interpretation” made by Mr Callaway of what the offender said and is not something that the Crown contends in fact happened.
In short, the Crown accepts that the “severe closed head injury as a result of a bilateral fracture to the skull”, the cause of death according to Professor Lyons, was caused by the offender shaking the bassinette with the baby in it, then throwing the baby into the bassinette and then pushing the bassinette away, causing it to fall over. It accepts that this was the “severe impact” causing the “blunt trauma to the head” that Dr Moran spoke of.
A casual observer could be forgiven for being somewhat sceptical about this. I was myself. However the Crown has the expertise of its professional witnesses at its disposal and it is prepared to accept it. As there is no evidence to suggest that it could not possibly be true, I too must accept it and so I will proceed to sentence accordingly.
Further evidence as to the offence
The offender gave evidence in the sentence proceedings and it included further evidence as to the offence.
She said that immediately after doing what she did to TC she thought that he was dead. However, when she saw that he was breathing she thought he was just asleep. She realised, however, that it was likely that he was badly hurt. She did not think to call an ambulance. She said that she did not know what to do. The only thing that she did do was to hide the damaged bassinette frame in the shed.
When PC came home she told him what had happened. He suggested getting medical attention. Their intention was to take him the next day as the doctors’ offices were closed by this time. She conceded, however, that an ambulance could have been called. She accepted that “to some degree” she was protecting herself at the expense of her child.
TC did not get any better during the night. He was in and out of consciousness and was not calling out to be fed. The next morning she bathed him to try and wake him up. She could tell that he was seriously injured. His eyes were rolling back. She told PC to make some telephone calls to get some money transferred to a bank account so that they could buy petrol. It was a joint decision to take TC to Inverell because they did not want local people in Bingara to know. She agreed that Bingara hospital was the closest and also that it would have been simpler to ring triple 0.
The offender agreed that she had noticed the bruising on TC that was noted by Dr Fisher. She did not think that she had discussed it with PC. She concocted the lie told to Dr Fisher that PJC was responsible for hurting TC. She now felt terrible for blaming her own daughter in what she told Dr Fisher and then in subsequent police interviews.
A pattern of child abuse
The offender is not to be punished for any previous physical abuse to which TC was subjected, but, given it is raised in the statement of agreed facts, it is appropriate to refer to some further evidence about it. It is not contended that she was responsible for this previous abuse. It was her evidence that PC was responsible and the Crown did not dispute this.
The offender agreed that it had occurred to her that the reason TC stopped feeding when he was about a month old was because he was hurt or distressed but that she had done nothing in response. Her explanation was that she was protecting herself and PC.
The offender had no explanation for how TC’s blood came to be on the lounge room wall or on his clothing. She saw the blood stained clothing in the wash basket. She thought it might have been a result of something that PC had done but she never asked him about it. She explained that she would not have dared to.
In her statement of 25 May 2010 she said that the only thing she could think of in relation to the finding that TC had a fracture of the right radius was that she noticed that this arm appeared to be tender when she was bathing him when he was about three days old. She thought there might be something wrong and she asked her mother about it. In her evidence she said that they had wondered whether it had been caused at birth. Her mother, KH, was asked about this. Her account was that the baby was pulling his arm and leg up and she had concluded that it was just wind. Those explanations are obviously fanciful. The agreed facts include that this injury was sustained about two weeks prior to the child’s death.
The offender had no knowledge of what caused the fractured ribs. She said in the statement, however, that PC had hit TC with both an open and closed fist on a number of occasions, although I note that in her oral evidence she said that she did not see him punch TC.
She also said in the statement that she once saw PC back hand TC across the left side of his face. About a week later, when TC was about five weeks old, she saw him kick TC across the lounge room floor. She described a single kick and said that the child rolled about two metres across the floor.
The offender claimed in her statement that she was not aware of the injuries until the brief of evidence was served. She claimed that he never showed signs of being injured. Ms Evers, counsel for the offender, suggested in the course of submissions that this was indicative of insufficient attention being paid to the child because of the difficulties arising from lack of bonding and the like. I find that difficult to accept.
The Crown Prosecutor suggested to the offender that there was nothing stopping her from telling the police about what PC was doing to TC or from getting the baby away from him. She said that she did try to get away on several occasions. She was asked whether she had chosen to remain with PC and to ignore TC’s suffering and she replied, “To some extent, yes”.
Subjective circumstances
The material before me as to the offender’s background and personal circumstances comprises reports by Professor Buist, psychiatrist, and Dr Kate Seidler, psychologist, as well as oral evidence from the offender, her mother and her boyfriend, Mr Andrew Buxton.
I have mentioned that the offender was born in January 1988. She was 18 at the time of the offence and is now aged 22.
Her parents separated when she was a toddler. She had no memory of her parents when they were together. She met her father for the first time when she was 12 but he did not want anything to do with her. She came to regard a subsequent partner of her mother’s as her “father” but that relationship ended when she was 14. A half-brother was born in that relationship and another in a subsequent relationship.
The offender complained to Professor Buist of witnessing violence and alcohol abuse during her mother’s relationship with her second partner, as a result of which she suffered from emotional neglect and a lack of warmth and nurture. School became something of a refuge for her where she appears to have achieved some success. KH gave evidence that the offender did well at school. She said she had no difficulty from an academic or intellectual point of view. She was a sports champion at Toormina High School. She achieved a scholarship to attend a private school from Year 8 to Year 10. She obtained her school certificate. It appears that she enrolled to undergo Year 11 studies at a public school but either did not commence, or withdrew very soon after commencement. This coincided with the commencement of her relationship with PC.
The offender claimed that she was sexually abused when she was about 7 years of age. She complained to her mother and it was reported to the police but she was not believed. She was again sexually abused by an adult male neighbour at age 14. There is no evidence that she received any counselling in relation to this.
The relationship between the offender and PC began in late 2003. She soon moved in to live with him at his parents’ home. They moved to a house at Thora, near Bellingen, in April 2004. The offender soon became pregnant with their first child, PJC. Later in 2004 they moved to Urunga.
PJC was born in February 2005 while they were living at Urunga. The history the offender provided to Professor Buist was that the birth of PJC was difficult. Thereafter she coped poorly and was sad and tearful, although she told no-one. Professor Buist suggests that it is common for women to delay seeking treatment because they do not recognise that they have depression and do not want to be stigmatised as either depressed or being a bad mother. By way of contrast, however, the offender’s mother’s evidence was that she did not see any signs of depression. KH had a reasonable amount of contact with her daughter, both during the latter stages of the pregnancy and following the birth. She lived just around the corner and used to visit her daughter and the baby every day. In one of her statements to the police she described PJC as appearing healthy, well looked after and always clean and tidy.
The offender and PC were forced to leave the house at Urunga towards the middle of that year. They went to Bingara to look for accommodation. On 4 July 2005 they were found to be camping under the Gwydir Bridge in their car, with PJC and some domestic animals. They came to the attention of authorities when the offender was seen threatening to throw herself off the bridge and PC was found to have cut himself. This was not the only suicide attempt made by the offender but the evidence does not establish when the other events occurred. She is reported to have taken a drug overdose on one occasion and to have walked in front of on-coming traffic on another.
On this particular occasion representatives of a number of government agencies intervened and sought to assist with matters such as emergency accommodation and drug and alcohol counselling. It was apparent that the pair were using drugs. PC was a cannabis user and the offender had taken to using that drug during her relationship with him. It was also thought that the offender may have mental health issues, although there does not appear to have been much exploration of this. It was found around this time that the offender was pregnant with her second child.
The offender and PC agreed to the Department of Community Services taking PJC into care. She remained in care until she was returned to the couple late in 2005. By that stage the offender and PC had taken over occupancy of the house at Glen Oval. Officers of the Department had attended the house prior to returning PJC.
The offender had described the house to Professor Buist as being generally derelict. Ms Evers was critical of the Department for not doing anything to assist the family given this state of their accommodation. In response, the Crown tendered photographs of the house. They show only limited aspects but they certainly indicate that the description of the house the offender gave to Professor Buist was exaggerated. I note, however, that the Crown Prosecutor conceded that the house was somewhat run down and that there was no running hot water.
The offender and PC moved back to the coast in early 2006 and lived with the offender’s mother, who by this time had moved to Toormina. TC was born on 19 March 2006. They remained with the offender’s mother until they moved back to Glen Oval about two weeks later.
The offender described to Professor Buist a number of depressive symptoms she experienced following the birth of TC. She was not eating because they could not afford food. She claimed that PC spent their money on drugs. Her weight reduced to 45 kg. The only time she left the house was with PC to go to his friends to acquire drugs or to the supermarket for shopping.
KH saw a contrast in the way her daughter was with TC with the way she had been with PJC. With TC she was withdrawn, quiet and did not appear to be coping and bonding.
The offender claimed that PC never liked TC. He questioned whether he was the father. I have earlier referred to his acts of violence towards the child.
The offender said that a significant proportion of the Centrelink benefits she and PC were receiving were being spent on drugs and that there was a shortage of food in the house for this reason. She insisted, however, that the children did not go without, it was only herself and PC. She denied a suggestion that she put her own interests above those of her children. She conceded, however, that TC was malnourished because he was not getting enough food.
She was asked about her visit to Dr Fisher in Bingara on 11 April 2006. The purpose was for her to obtain a prescription for the contraceptive pill. She agreed that she could have taken TC with her. She agreed that she told Dr Fisher on that occasion that the baby was fine, and that this was a lie. Her explanation was that she did not want people to know what was going on in her life and that she was protecting herself and PC. She did not explain in what sense she was protecting herself. She agreed that TC had never been seen by a health professional and that she knew that was not appropriate.
PJC was taken into care the day that TC died. The offender saw her once per fortnight until she went into custody on 5 December 2006. Her oral evidence was to the effect that she found having no access from that point distressing. I note, however, that she told Dr Seidler that she had intermittent contact via video link from the gaol. After being released on bail in May 2008 she was able to see PJC once a month. By the time she returned to custody she had developed a strong bond with her. Again, however, she says that she has no contact. She said in her oral evidence that having and maintaining a good relationship with PJC is a matter of importance to her.
The offender gave evidence that for the first three months in custody she was kept in isolation in very restricted circumstances. For the remainder of the time she was held in a form of protective custody with limited association with other inmates. She was housed in a wing with other women who were in custody for similar crimes. She was allowed to associate with these women and was allowed out of her cell for four to five hours a day. She complained of abuse from some of the other inmates and said that one had assaulted her. Her mother lived at Inverell and was able to visit her once a month. Her stepfather visited occasionally.
Upon returning to custody a few weeks ago she was again placed in limited association protective custody. She is allowed out of her cell between 8am and 4pm except for the lunch hour. She is not denied any of the amenities available to mainstream inmates. She has again been abused by some other inmates.
There is no evidence as to what the circumstances of the offender’s custody is likely to be in the future. I would expect it would be much the same as it is now and I will take that into account.
The offender went to live with her mother when she was released on bail. She said her relationship with her mother was now a good one whereas it had been rather patchy in the past. Her mother was an alcoholic but no longer drinks. KH confirmed this. The offender described her mother as her “best friend”.
When the offender was with PC she was drinking alcohol and smoking cannabis. Alcohol and drugs are no longer a part of her life. She said she has come to the realisation that she does not need them.
Since 2008 she has been in a relationship with Mr Andrew Buxton. She described this relationship in positive terms. There are no drugs, alcohol or domestic violence. He gets along well with the offender’s mother and half-brothers. They had a child who was born some time, I gather, in 2009. He has Down’s syndrome. He was taken into care immediately after birth which was something that had been anticipated. The offender was not permitted to touch the child following delivery although she and her mother immediately followed when the baby was transferred to hospital in Newcastle where she was permitted to feed and bathe him. He is now being cared for by the same foster mother who has PJC.
There was a subsequent pregnancy which was terminated out of fear that this child would be taken into care as well.
Mr Buxton is 22 years old; he is in employment; he has no criminal history to speak of; and he does not use drugs. He confirmed that the relationship is positive and that there is no domestic violence. He said that he was aware of the circumstances surrounding the death of TC. He confirmed that he will continue to support the offender.
It is necessary to say something more about the nature of the relationship between the offender and PC. There was significant focus upon this subject in the evidence and submissions. It is important to bear in mind that this was a relationship between a young woman which commenced when she was barely 16 years of age with a man who was six years older.
PC was violent, abusive and belittling to the offender from an early time in the relationship. He was irritable and he would slap and push her around. He discouraged her from having contact with friends and family. He frequently told her that no-one else would have her and that she deserved all that he gave her. Sometimes he said that it was her fault that he acted in this way. He made violent threats, including with guns. She sustained injuries including black eyes, a bleeding nose, a split lip and various bruises. She would have to apologise to him for the behaviour to stop. If he later saw that he had injured her he would apologise and promise never to do it again. She told Professor Buist that she always believed him. This behaviour continued throughout the course of the relationship. It appears to have become worse as time went on.
There was a considerable body of oral and documentary evidence on this topic. It is unnecessary to set out all of the detail. Some of it is reliable and some of it is not. I am not prepared to accept everything that the offender has said on the subject. Her credibility is questionable for a number of reasons. She has lied about the circumstances surrounding the death of her son for over four years. She conceded in her evidence that when she saw Dr Seidler in gaol in April 2008 she lied about the offence as well as about the level of violence meted out by PC to herself and to TC. Nevertheless, there is a considerable body of evidence from other sources.
I accept that the relationship between the offender and PC was a volatile one and was marked by frequent disagreements and heated arguments. It appears that PC had a short fuse and would fly off the handle for little reason. The offender has accepted that sometimes she was at fault in initiating an argument, pushing PC to the point of explosion. However, his behaviour cannot in any way be excused. He was violent, abusive, intimidating and unpredictable.
The offender, on the other hand, was young and, more significantly, immature. I did not sense that she was particularly worldly. She had fallen pregnant with her first child at age 16 and she gave birth to her second child just after her 18th birthday. Neither pregnancy was planned.
Professor Buist assessed the offender as suffering from low self esteem, a product of the various negative influences and events in her formative years. She offered the opinion that this has a strong correlation to an increased risk for depression and anxiety disorders, including postnatal depression. She saw the offender as countering low self esteem by seeking to gain approval by being “good”, passive and compliant in the hope of being loved.
The lack of an appropriate fatherly role model predisposed her to remaining in an abusive relationship in that she was conditioned as a child to accept violence as the norm and what she deserved. Professor Buist saw this as further eroding the offender’s self esteem and ability to consider alternatives.
The professor also saw the offender’s “needy and dependent personality” and poor self esteem as contributing to attachment difficulties with her own children. She opined that their neediness was likely to have precipitated unresolved issues of her own unmet needs.
Professor Buist regarded the history provided by the offender as a description of postnatal depression following the births of both PJC and TC. She referred to three well known risk factors that were present following the birth of TC – past depression (with PJC), lack of support and a history of childhood abuse. I have doubts about the first of those in the light of the evidence of KH that I have referred to earlier. However, the Crown fairly concedes that there was depression at the time of the offence and I accept that to have been the case.
On a positive note, Professor Buist reported that the offender is currently well with depressive symptoms fully resolved. However, she also noted a risk of a recurrent postnatal depressive episode if she found herself again in an abusive relationship or lacking postnatal support.
Dr Seidler conducted a number of psychometric tests. The results included that the offender’s intellectual functioning was estimated to be in the borderline range, being above 8 per cent of the normative sample. I do not place any weight upon this. It flies in the face of the evidence about the offender’s achievements at school. Dr Seidler conceded that the outcome of this test may have underestimated the offender’s abilities as a result of “emotional concerns”.
The tests also indicated that the offender was someone who is passive, insecure and not prone to aggression or violence. It is unclear whether that is an enduring profile or something which was a reflection of her at the time of testing in April 2008.
I do not believe that I can place any real weight upon the conclusions Dr Seidler formed from her clinical assessment. It is impossible to discern the extent to which they were influenced by the untruthful or exaggerated account that the offender provided her.
Some mitigating factors
I can state my conclusions concerning some subjective mitigating features quite succinctly as they were not the subject of dispute between the parties.
Although the offender has lied about her criminal culpability for the death of her baby for a very long time, to medical and police officers, her family and a psychologist, she has finally accepted responsibility and acknowledged her guilt. I would not be surprised if what she did to TC is something that will haunt her for a long time, perhaps for the rest of her life. I accept that she is genuinely remorseful.
She has no previous convictions and, apart from using a prohibited drug during her relationship with PC, she is otherwise of good character.
I am of the view that she is unlikely to re-offend and that she has good prospects of rehabilitation - although I would hasten to add that I think she would still benefit from a period of supervision to assist her in putting her life back together following release on parole. Monitoring the stability of the life she seeks to make at that time will be important and not a short term project.
There are special circumstances warranting a reduction in the non-parole period to be imposed. In this regard I have in mind her relatively young age; the problematic issues relating to custody of, or access to, her two children – a matter which I accept has the potential to be distressful for her; obtaining employment, perhaps after some vocational training; and the need for counselling to deal with some of the unresolved issues arising from her upbringing and the death of TC.
The offender’s plea of guilty is one that came when her trial was finally due to commence three and a half years after she was arrested and charged. It had very limited utilitarian value to the criminal justice system but she will get some benefit for it.
More significant in terms of reducing her sentence is her assistance to authorities. She provided a statement to police on 25 May 2010 as I have earlier indicated, and gave an undertaking to give evidence in accordance with that statement in the trial of PC. It was assistance that came rather late in the piece but was, nonetheless, useful.
The Crown accepted her evidence as truthful and proposed to call her as a witness. I was informed that the Crown regarded her evidence as “of value” and that she would have been “an important witness”. The offender provided direct evidence against PC in what was otherwise a circumstantial case. Whether the offender’s proposed evidence had any bearing upon PC’ decision to plead guilty is speculative, but there is a distinct possibility that it did.
There is no evidence that the offender’s assistance will render her time in custody more onerous, or that she has placed herself in any jeopardy when she comes to be released into the community.
I bear in mind the important provision in s 23(3) Crimes (Sentencing Procedure) Act 1999 that any reduction in sentence on account of assistance to authorities must not be such as to produce a sentence that is unreasonably disproportionate to the nature and circumstances of the offence. In the light of recent authorities on the subject, I propose to reduce the sentence I would otherwise have imposed by 30 per cent on account of her plea of guilty and her assistance.
Seriousness of the offence
Having indicated all of those matters that I am taking into account in the offender’s favour, it is important to stress that I must impose a sentence that properly reflects the objective seriousness of the offence. In this regard I have taken into account all of the circumstances, but in particular the following.
First, and foremost, it must be borne in mind that the offence involved the unlawful taking of the life of a human being. This is the most significant matter relevant to the assessment of sentence in a case of manslaughter.
A most aggravating feature of the offence is that it involved a gross breach of the trust placed in a parent in respect of the most vulnerable of human beings, a newborn baby. The vulnerability of the child was even more acute when it is remembered that he was malnourished and had been the victim of prior acts of violence, factors which were known to the offender.
I accept, however, that what the offender did was the product of a spontaneous fit of anger. She was upset about her partner having left her alone in their house on an isolated country property. She was faced with a crying baby and a toddler at her feet.
There were three discrete acts, albeit within rapid succession, which brought about the child’s death. She first shook the bassinette, then picked up and threw the child, and then pushed the bassinette with such force that it travelled a distance before tipping over. These acts involved such violent force that they resulted in the injuries I have earlier detailed. As the Crown Prosecutor submitted, this was not some momentary shaking of a baby or the like. It was a series of acts which involved considerable violence.
The offender failed to act on an undoubted appreciation of the need for her baby to receive urgent medical attention. I am satisfied that she was aware that the baby had sustained a serious head injury. His breathing was impaired. By the morning, at least, it must have been apparent that there was a likelihood of brain damage. This failure to seek help was, at least in part, motivated by self interest placed above the interest of the helpless child. There might have been a loss of self-control involved in the violent way in which the child was hurt but that cannot explain the offender’s subsequent actions and inactions.
On the other hand, the offender’s moral culpability is reduced by a range of factors, including her youth, immaturity, and post natal depression. This depression is a significant feature, although it must be said that it was not to the extent that the offender was completely debilitated to a degree sometimes seen in similar cases. Further, I accept that she had inadequate parenting skills and I also take into account her subordinate and repressed role in her relationship with PC, the geographic isolation in which she lived, and the pressures in those circumstances of trying to provide for the demands of a 14 month old daughter and a 7 week old baby.
It was submitted by the Crown that the offender’s lies over a significant period of time about the circumstances relating to the offence were also relevant to its objective seriousness. I do not believe that this is relevant but it is something that demonstrates that genuine remorse was late in coming.
I assess this offence as being in the lower range of seriousness for offences of manslaughter. It is by no means at the bottom of the range and it remains a serious matter.
Other sentencing considerations
There are some other matters that should be mentioned that are relevant to the assessment of sentence. It was submitted that the delay that has occurred in this case is a matter to be considered. In the light of the history of the proceedings, however, it is only relevant to the process of rehabilitation which the offender has undergone in the intervening period. I did not hear any evidence from the offender that she had been particularly troubled about the delay.
General deterrence is usually one of the most important considerations but in this case it is of less significance because of the offender’s youth and immaturity and the depression she was experiencing at the time of the offence. In the light of my conclusion as to the offender’s good prospects of rehabilitation I do not think there is any great need for personal deterrence either.
On the other hand, I accept the submission of the Crown Prosecutor that the sentence should reflect to a significant degree the need for retribution, denunciation and punishment. The community might well feel some sympathy for the plight in which the offender found herself, as Ms Evers submitted, but it would also, rightly in my view, expect that these three matters be reflected in the sentence to be imposed.
To take into account the time the offender has already spent in custody, I propose to back date her sentence to 1 December 2008.
Sentence
Convicted.
Sentenced to a term of imprisonment comprising a non-parole period of 2 years 6 months and a balance of the term of the sentence of 1 year 8 months.
The sentence will date from 1 December 2008.
The offender will be eligible for release upon the expiration of the non-parole period on 31 May 2011.
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LAST UPDATED:
21 June 2010
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