Staples v The Queen
[2021] VSCA 307
•15 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0229
| CAMERON STAPLES | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, KAYE and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 November 2021 |
| DATE OF JUDGMENT: | 15 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 307 |
| JUDGMENT APPEALED FROM: | [2020] VSC 683 (Coghlan JA) |
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CRIMINAL LAW – Appeal – Sentence – Child homicide – Plea of guilty – Appellant caused death of four month old son – Victim suffered brain haemorrhages, retinal haemorrhages and hypoxic brain damage – Appellant intoxicated – Initial lies about cause of injuries – Subsequent admission of being ‘too rough’ – Injuries caused by violent shaking and impact on hard surface – Circumstances of offending otherwise unknown – Sentenced to nine years’ imprisonment with seven years non-parole period – Whether sentencing judge erred in finding on prospects of rehabilitation – Whether sentence and non-parole period manifestly excessive – Appeal dismissed – Crimes Act 1958 s 5A, R v Hughes [2005] VSC 312, DPP v Woodford [2017] VSCA 312, R v Rowe [2018] VSC 490, R v Vinaccia [2019] VSC 683 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S Lenthall | Papa Hughes Lawyers Pty Ltd |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA
EMERTON JA:
The appellant pleaded guilty to the child homicide of his infant son Flynn Staples on 7 May 2019. After a plea presented on his behalf, the appellant was sentenced to nine years’ imprisonment with a non-parole period of seven years.
The appellant, by leave, appeals against his sentence on two grounds:
Ground 1:The learned sentencing judge erred in his finding as to the appellant’s prospects of rehabilitation.
Ground 2:The sentence imposed on charge 1 and the non-parole period are manifestly excessive in all of the circumstances.
Circumstances of offence
At the time of the offence the appellant was living with his then partner Robyn Hall in Kilsyth. The appellant and Ms Hall met in late 2015, and they commenced living together in April 2016. Subsequently, on 5 January 2019, Ms Hall gave birth to their son Flynn Staples. Flynn was a healthy baby and at the time of his death he had no known medical conditions.
At about 6:00 pm on Friday 3 May 2019, Ms Hall left home to attend a local cinema with a friend. The appellant remained at their home to care for Flynn. No other person was present in the home. About 15 minutes after Ms Hall left, the appellant also left the home. He walked a distance of about 350 metres to a shopping centre where he purchased eight cans of Woodstock Bourbon and Coke, each can containing 200 millilitres of 12 per cent alcohol premix, before walking back home.
At 10:00 pm on the same evening, Ms Hall returned home. The appellant was then painting in the kitchen. When Ms Hall checked on Flynn at 10:30 pm, he appeared to be sleeping. She unsuccessfully attempted to arouse him in order to give him a bottle of milk. At 11:15 pm, Ms Hall again checked on Flynn, and she was still unable to wake him. When she picked him up, he was limp in her arms and non-responsive to stimuli. He was moaning and his jaw was clenched tight. Ms Hall rang the emergency triple zero number requesting an ambulance.
Shortly after midnight on 4 May, paramedics attended the home. When they examined Flynn he was unresponsive. He was immediately transported to the Box Hill Hospital. On arrival there, he was transferred to the Monash Medical Centre Paediatric Intensive Care Unit. There Flynn underwent a CT scan and other tests, which revealed that his brain was swollen, that he had suffered subdural and subarachnoid haemorrhaging, a left-sided scalp haematoma and hypoxic ischaemic brain injury. He was placed in an induced coma.
On the following Tuesday, 7 May 2019, the appellant had a conversation with Dr Joanna Tully, the head of the Victorian Forensic Paediatric Medical Service, at the Monash Hospital. The appellant told Dr Tully that he had changed Flynn’s nappy and then gone into an adjoining room. When he returned Flynn was lying on the floor beside the change table, making ordinary crying noises. The appellant said that he picked Flynn up and he seemed to be alright. Accordingly, he laid Flynn in his cot.
Flynn remained in an induced coma, and he passed away at the Monash Hospital, in the arms of his mother Ms Hall, on 7 May. On the following day, an autopsy was performed, which revealed that Flynn had sustained the following injuries:
·Subdural and subarachnoid haemorrhages.
·Bleeding around the spinal cord.
·Severe retinal haemorrhages.
·A severe hypoxic injury to the brain.
·Scalp swelling.
·Scalp bruising.
·Multiple areas of bruising to his legs, arms and buttocks.
In her report, Dr Tully expressed the following conclusions:
The combination of these features indicate that Flynn has suffered inflicted injury as a result of an adult handling him in an inappropriate manner, most likely by violent forceful shaking with associated impact against a firm or hard surface. The history provided of a short distance fall from a change table following which Flynn appeared well, is not sufficient to account for the totality of his injuries. There is currently no evidence of any naturally occurring medical condition that would reasonably explain Flynn’s clinical presentation or the constellation of his injuries.
In the meantime, on Saturday 4 May 2019, police attended the Monash Children’s Hospital where they spoke with the appellant and Ms Hall. The appellant did not offer any explanation as to how Flynn had suffered his injuries. Ms Hall, of course, was not in a position to do so. Police then attended the appellant’s Kilsyth home where they located empty Woodstock Bourbon and Coke cans in rubbish bins outside the home.
In the afternoon of 4 May 2019, the appellant had a conversation with Ms Hall in which he told her that while she was at the movies, he had changed Flynn’s dirty nappy and tried to feed him, and that while he did so Flynn had fallen off the change table. He told her that it was when he went out of the room that he heard a ‘thud’, and that he returned to the room, picked Flynn up, and put him to bed.
That revelation understandably upset Ms Hall. A short time later she approached the appellant and asked him what had happened. The appellant responded that after he had changed Flynn’s dirty nappy, he had left Flynn on the change table unattended in order to put the nappy in the rubbish bin and to check his painting. He said that when he returned to the room five minutes later, he found Flynn on the floor.
At 4:15 pm on the same day, the appellant spoke to police in the presence of his father. The appellant’s father told police ‘Cameron has something to tell you’. When asked by police if there was something he wished to say, the appellant recounted to police the same explanation that he had given to Ms Hall. He said that he left the room to dispose of the nappy in the rubbish bin, and when he returned he found that Flynn had fallen off the change table and was lying on his side making little noises. He said that he did not hear any thumps. The appellant said that when he picked Flynn up he seemed to be alright, so he put a new nappy on Flynn, gave him a drink and put him to bed. It was at that point that police arrested the appellant and cautioned him. As they left the hospital, the appellant said to the police ‘I’m sorry I lied to you’.
The appellant was then conveyed to the Box Hill Police Station where a record of interview was conducted. During the interview, he again maintained that Flynn had fallen from the change table when he had left the room to dispose of the dirty nappy. The appellant said that he was away from the room for about 20 to 25 seconds, and that when he returned he found Flynn lying on the carpet near the change table. The appellant was then released from the police station.
On the following day, the appellant had a further conversation with Ms Hall. During that conversation Ms Hall asked the appellant if he was telling her everything. The appellant responded that he had ‘had a few bourbons’ after she had left to go to the movies. When she asked him how many drinks he had consumed, he responded that he had purchased eight but ‘had only drunk five’ of them. Ms Hall told the appellant that their relationship was at an end.
Ms Hall then realised that when she had left to go to the movies, there was no bourbon in the house. She went back to the appellant to ask him where he had got the drinks from. The appellant said that he had walked around the corner to get them and that at that time Flynn was asleep in his bed.
Subsequently, on 11 June 2019, Ms Hall telephoned the appellant and engaged him in a conversation in a ‘pretext call’ that was recorded by police. During that conversation, the appellant told Ms Hall that he had lied about Flynn falling off the change table. He said that he had been too rough with Flynn like he normally was when he was affected by alcohol, and that he was responsible for causing the injuries. He said that he was affected by alcohol as he had drunk too quickly. The appellant did not explain to Ms Hall how the injuries were caused. He said that he had put Flynn down ‘pretty hard’ on the floor from the couch, and that at that point Flynn went quiet. He said that Flynn was really quiet when he was on the floor. In the course of the conversation, he referred several times to Flynn hitting his head.
On 13 June 2019, the appellant was again arrested and a formal interview was conducted. The appellant confirmed that he and Flynn were home alone during the period in which Flynn was injured. He admitted that he had lied in saying that Flynn had fallen from the change table. He said that he had been too rough with Flynn during a nappy change. He said that he had problems with Flynn’s foot not coming out of the jumpsuit, and he described pulling Flynn towards him and feeling like it was too rough. The appellant told police that while he was playing with Flynn in the lounge room, Flynn went quiet, which made him think that he had been too rough with Flynn and had hurt his head. He said that he might have hit Flynn’s head when he placed him on the floor. He told police that he was playing with Flynn (pushing him around) and said he was moving his legs to get him to roll over ‘and that type of thing’ as much as he could. He remembered that Flynn went quiet while they were on the floor.
After the interview was completed, the appellant was charged with murder and remanded in custody. A filing hearing was conducted on the following day, and on 4 October 2019 a committal mention hearing took place, which was adjourned due to outstanding medical reports. On 1 November 2019, the defence made a formal written offer to plead guilty to child homicide. That offer was rejected by the prosecution as the factual basis of the plea had not been settled. Ultimately, the matter was resolved by negotiations on 1 June 2020. As a consequence on 25 June 2020 the appellant was arraigned and entered a plea of guilty to the charge of child homicide. The prosecution case was based on the opinion of Dr Tully that the injuries caused to Flynn were the result of the appellant handling Flynn in an inappropriate manner, most probably by violent forceful shaking with associated impact against a firm or hard surface.
Victim impact statements
On the plea, the judge received victim impact statements prepared by Flynn’s mother, Ms Hall, and Ms Hall’s parents, the grandparents of Flynn. At the commencement of the hearing of the plea the statements were read to the judge. They each described, in understandably heart rending terms, the profound grief they had each suffered, and continued to suffer, as a result of Flynn’s death, and the circumstances in which it occurred. They explained how the loss of their greatly beloved son and grandson had significantly impacted their lives and affected their mental health.
The appellant stood to be sentenced on a rational analysis of the facts of the case, and on the application of relevant sentencing principles. Nevertheless, the victim impact statements are and were a salutary reminder of the extent and depth of the grief and suffering which have been, and will continue to be, the inevitable consequence of the offence committed by the appellant. After the statements were read to the Court, the judge, in sensitive terms, observed that no sentence he might impose could restore Flynn to his loved ones, or could repair in any material way the anguish they had suffered. His Honour explained that he was required to determine the sentence to be imposed on the appellant based on the legal principles that apply to the case.
The plea
The appellant was born in December 1984, and at the time of the offence was 34 years of age. He was the eldest of three siblings, and he enjoyed a positive and happy childhood.
The appellant completed Year 12 at Mornington High School. After leaving school he worked briefly as a labourer and in a vineyard, but he was then unemployed for a period of nearly two years. During that part of his life he started to become quite socially withdrawn. Ultimately, he gained full time employment as a gas meter reader in which capacity he worked for the ensuing seven years. In view of the solitary nature of the work, the appellant progressively became more socially withdrawn. By the time he was 27 years of age, his social anxiety had become overwhelming and he started to feel depressed. As a result, he consulted his general practitioner, who referred him to a psychologist. The appellant was prescribed anti-depressant medication and underwent a course of psychological counselling.
In the meantime, the appellant met Ms Hall through an online dating application and commenced a relationship with her. In 2017, he resigned from his employment as a gas meter reader, and commenced a mature age apprenticeship in classic car restoration. However, he subsequently fell out with his employer, and the apprenticeship terminated shortly before the events with which this case is concerned. During that time, the appellant continued to be prescribed, and use, anti-depressant medication.
When the appellant was in his 20s, he commenced using alcohol as a means of alleviating his anxiety issues. His alcohol consumption gradually increased throughout the course of his adulthood, particularly after he left the family home, and it reached a peak about one year before Flynn’s birth. At that time he was drinking alcohol daily. He needed to consume progressively increasing quantities of alcohol in order to feel intoxicated and to thereby alleviate his feelings of psychological distress.
For the purpose of the plea, the appellant was examined by Mr Mathew Staios, a clinical neuropsychologist, in August 2020. Mr Staios concluded that the appellant’s personality was characterised by a lack of interest in social relationships, a tendency towards a solitary or sheltered lifestyle, restricted emotions, detachment and apathy. As such the appellant was prone to develop symptoms of anxiety. His response style on testing indicated the presence of anxiety, depression and alcohol dependence. Mr Staios concluded that the appellant met the criteria for a diagnosis of Schizoid Personality Disorder, Generalised Anxiety Disorder, and Alcohol Use Disorder.
In respect of the connection between the appellant’s diagnosis and his offending, Mr Staios expressed the following view:
In considering [the appellant’s] behaviour in the context of his offending, it is my opinion that his long-standing and predisposing entrenched and maladaptive personality traits, alongside depression and anxiety, increased his level of disinhibition and reactivity in the moments preceding offending, thereby decreasing his ability to regulate his emotions and form rational thoughts and judgments. These conditions, in conjunction with acute alcohol intoxication, exacerbated long-standing and untreated personality predispositions, impacting on his level of moral culpability and engagement in consequences thinking.
Mr Staios also noted that the appellant’s personality structure limited his ability to express and appreciate the impact of his offending on members of his family including on Ms Hall. He was not able to independently express remorse for his actions because of his limited emotional range and tendency towards detachment. Mr Staios considered that the appellant would require intensive psychological intervention and monitoring as his personality structure was likely to be a permanent feature of his clinical presentation, together with symptoms of anxiety and depression. In addition, his tendency to abuse alcohol as a means of coping would need to be addressed.
On the plea, the judge received character references prepared by the appellant’s father, mother, brother and sister. They each spoke of the appellant as a sensitive and compassionate person, who had never been observed to engage in aggression or violence, and who had a capacity to stay calm in testing situations. While they were aware of the appellant’s predisposition to be anxious and withdrawn, they were unaware that he had been drinking excessively and using anti-depressant medication. The appellant’s parents and siblings each observed that he was extremely remorseful over the loss of his son and the anguish it had caused to Ms Hall.
In addition, on the plea, the judge received certificates regarding the courses undertaken by the appellant while in custody, and a certificate noting that the appellant’s urine sample had been negative.
On the plea, counsel then acting for the appellant accepted, correctly, that the appellant’s psychological condition, and his use of alcohol as a form of self-medication, did not mitigate his moral culpability for the offending, but rather that it explained it. Counsel relied on a number of mitigating circumstances. The appellant had no previous convictions and he was otherwise of good character. He had pleaded guilty at the earliest opportunity, and his plea was of significant utilitarian benefit. It was submitted that the plea demonstrated a willingness to accept responsibility for his offending and to facilitate the course of justice. It was also contended that the plea was of greater utilitarian value, because it was made during the current COVID-19 pandemic.
In addition, it was submitted that although the appellant did not make any admissions as to the precise circumstances in which he had injured Flynn, he had not tried to deflect responsibility onto any other person. The admissions that he had made constituted the basis for the prosecution case against him. Counsel also noted that a term of imprisonment would be more onerous for the appellant due to the opprobrium associated with the offence which he had committed, and in addition because of the onerous conditions in custody arising from the current COVID-19 pandemic. It was further contended that the fact that he had been responsible for the death of his own infant child weighed heavily upon him.
Counsel also submitted that the judge should accept that the appellant had ‘very good’ prospects of rehabilitation. In that connection, counsel relied on the fact that the appellant had no previous criminal history, he was 34 years of age at the time of the offence, and he had already shown a commitment to engaging in treatment for his underlying psychological condition. Counsel submitted that in the circumstances it would be appropriate for the judge to impose a sentence that involved a longer than usual parole period which would enable the appellant to access appropriate treatment for the conditions diagnosed by Mr Staios.
Reasons for sentence
In his reasons for sentence,[1] the judge noted that the offence of child homicide is by its nature a serious offence. His Honour did not regard the appellant’s intoxication as a mitigating factor, but he did not consider that it aggravated the offending.[2] The judge further concluded that the appellant’s psychiatric condition did not reduce his moral culpability, because it could not be sufficiently separated from the effects of his excessive consumption of alcohol.[3] The judge accepted that the appellant’s conduct was not at the ‘more serious end’ of conduct relating to the homicide of small children. In particular, it involved a single episode of short duration, and the case could be contrasted with other cases in which there was significant violence which was protracted and deliberate.[4]
[1]DPP v Staples [2020] VSC 683 (‘Reasons’).
[2]Ibid [53].
[3]Ibid [47].
[4]Ibid [55].
In mitigation, the judge accepted that the appellant had pleaded guilty and accepted responsibility at an early stage. The plea had significant utilitarian value in that it had saved witnesses from the need to give evidence.[5] The judge noted that the appellant had no previous convictions and he accepted that the appellant was ‘unlikely to reoffend, particularly in any similar way’.[6] The judge accepted that the appellant was remorseful.[7]
[5]Ibid [54].
[6]Ibid [56].
[7]Ibid [57].
In respect to the appellant’s prospects of rehabilitation, the judge concluded as follows:
I was asked to find that you have very good prospects of rehabilitation. I observed on the plea that in view of what was said by Mr Staios, which I have set out above, your prospects are somewhat guarded. I still regard that as so. Nonetheless, I regard them as positive. On the plea I received letters from each of your parents and your brother and sister. They all spoke well of you and were surprised to see you in this position. They have seen no violent propensity, largely the opposite. Just how much they understood your psychiatric deficits and alcohol problems is not clear, but you do have their unqualified support.[8]
[8]Ibid [58].
The judge also noted that the appellant had used his time in custody well, and his Honour took into account that as a result of the COVID-19 pandemic the conditions in which the appellant would serve his sentence would be more onerous.[9] The judge did not regard the case to be one in which it was appropriate to allow for a longer period of parole than would be usual.[10]
[9]Ibid [59]–[60].
[10]Ibid [63].
Ground 1 — submissions
Ground 1 is directed to the finding by the judge that the appellant’s prospects of rehabilitation, while positive, were nevertheless ‘somewhat guarded’. In effect, counsel for the appellant advanced three arguments in favour of the proposition that the judge erred in expressing that qualification to his conclusion about the appellant’s prospects of rehabilitation.
First, it was submitted, in view of the judge’s conclusion that there was an insufficient causal connection between the appellant’s diagnosed psychological disorder and the offending, it was inconsistent for his Honour to find that the appellant’s prospects of rehabilitation were limited by the lack of treatment available to him for his disorder, and for that reason were guarded. In other words, it was submitted, the fact that the appellant’s diagnosed disorder was not considered to play a relevant causal role in the offending had the effect that the lack of treatment for his disorder, while he was in custody, could not be considered to diminish his prospects of rehabilitation.
Secondly, it was submitted that the conclusion by the judge, that the appellant’s prospects of rehabilitation were ‘guarded’, was not supported by the evidence. The appellant had pleaded guilty and taken responsibility for his actions. He came before the Court at the age of 35 years with no previous convictions and no previous connection with the law. He had a good work history, and he enjoyed the ongoing support of his family, was remorseful, and had used his time in custody positively. The judge was satisfied that the appellant was unlikely to reoffend, particularly the same way, and it was common ground between the prosecution and the defence that the appellant’s prospects of rehabilitation were good. In those circumstances, it was submitted, it was not reasonably open to the judge to conclude that his prospects, while positive, were nevertheless ‘guarded’.
Thirdly, counsel submitted, the conclusion by the judge that the appellant’s prospects of rehabilitation were guarded was unfair to the appellant. In that respect, it was submitted that the lack of appropriate rehabilitative measures in prison should not be counted against the appellant, who had been abstinent from alcohol since his incarceration, had been adhering to a medication regime, and was willing to engage in treatment. Counsel referred to the observation by this Court in Boulton v The Queen[11] that as a consequence of the restrictive environment of prison, the opportunities and incentives for rehabilitation are limited. Accordingly, it was submitted, an attendant feature of a custodial sentence should not have been relied on by the judge to detract from an assessment of the appellant’s prospects of rehabilitation.
[11](2014) 46 VR 308, 334 [107]; [2014] VSCA 342 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
In response, counsel for the respondent submitted that there was no inconsistency in the conclusion by the judge that the appellant’s prospects of rehabilitation were ‘guarded … [but] nonetheless … positive’.[12] The judge specifically found that the appellant was unlikely to reoffend particularly in any similar ways as the current offence. That conclusion was consistent with the judge’s finding that the appellant’s personality disorder did not contribute to the commission of the offence. In that context, the judge’s assessment of the appellant’s prospects of rehabilitation was of a more general nature, not specific to the offending in question.
[12]Reasons [58].
Counsel further submitted that the judge was justified in expressing some caution in respect of the appellant’s general prospects of rehabilitation. Mr Staios, the clinical neuropsychologist, concluded that the appellant’s long-standing and entrenched personality disorder affected his ability to regulate his emotions and to form rational thoughts and judgments. Mr Staios also considered that the appellant’s personality structure was likely to be a permanent feature of his presentation. His Honour was required to take into account the fact that while the appellant was serving a term of imprisonment he was unlikely to receive sufficient treatment that would address his underlying personality problem, and this would affect his general prospects of rehabilitation.
Ground 1 — analysis and conclusion
In order to determine ground 1, it is necessary, first, to understand precisely what the judge meant when he concluded that the appellant’s prospects of rehabilitation, while positive, were nevertheless ‘somewhat guarded’.
In addressing that question, it is important to note that the judge expressed that conclusion almost immediately after he had observed that the appellant had no previous convictions and no previous dealings with the law, and that he was ‘unlikely to reoffend, particularly in any similar way’.[13] That finding by the judge is, of course, consistent with his later conclusion that, in the appellant’s case, the sentencing purposes of specific deterrence and protection of the community would be of ‘little significance’.[14]
[13]Ibid [56].
[14]Ibid [62].
It was in that context that the judge outlined his assessment as to the appellant’s prospects of rehabilitation. Plainly, at that point, the judge did not repeat his view that the appellant was unlikely to reoffend. Rather, his Honour’s finding constituted his assessment of the appellant’s prospects of rehabilitation in a broader sense, namely, as to the capacity of the appellant to successfully return to the community after he had served a term of imprisonment.
It may be accepted that not infrequently judges, in delivering their sentencing reasons, use the concepts of ‘prospects of reoffending’ and ‘prospects of rehabilitation’ interchangeably. However, strictly speaking, an offender’s prospects of rehabilitation, while encompassing issues of reoffending, may involve a broader concept, and concern the capacity of the offender to successfully return to and reintegrate within society. In the present case, it is clear that the sentencing judge referred to the appellant’s prospects of rehabilitation in that sense.
Thus, properly understood, the judge found that while the appellant was unlikely to reoffend, particularly in any similar way, nevertheless his prospects of rehabilitation, while positive, were ‘somewhat guarded’. Accordingly, the judge’s conclusion concerning the appellant’s prospects of rehabilitation was not inconsistent with his earlier finding that he was not satisfied on the evidence that the appellant’s psychiatric condition contributed to his offending so as to reduce his moral culpability.[15]
[15]Ibid [47].
Nor are we persuaded that there was an insufficient basis for the judge to reach such a conclusion concerning the appellant’s prospects of rehabilitation. It must be borne in mind that the judge’s finding, on that aspect, was by no means negative. In particular, in reaching that finding, the judge noted that the appellant’s family spoke well of him, that he had no violent propensity, and that he had the unqualified support of his family.[16] The judge also noted that the appellant had used his time in custody constructively, completing courses, and undertaking the role of a unit billet in which he assisted older prisoners. The judge considered that those considerations were ‘all matters going positively to [the appellant’s] rehabilitation’.[17]
[16]Ibid [58].
[17]Ibid [59].
In that light, the qualification which the judge made in respect of the appellant’s prospects of rehabilitation — that they were ‘somewhat guarded’ — was quite limited.
Contrary to the submissions on behalf of the appellant, it is clear that the judge did have a sufficient basis upon which to express a qualified conclusion concerning the appellant’s prospects of rehabilitation in the broader sense that we have discussed. In his report, Mr Staios noted that the appellant’s personality style was long-standing and that it would require ongoing monitoring in the future, as would his tendency to use alcohol as a means of coping. He concluded:
Moving forward, [the appellant] will require intensive psychological intervention and monitoring as his personality structure is likely to be a permanent feature of his clinical presentation, alongside symptoms of anxiety and depression. His tendency towards alcohol use as a means of coping will also need to be monitored, as substance use will likely impact on his judgment and serve to exacerbate maladaptive personality traits. A referral to a forensic psychiatrist, specialised in treatment of personality disorders, is recommended. Ongoing treatment with a consistent treatment provider is recommended and may assist with building a trusting and therapeutic relationship, that is required for meaningful change.
In the course of the plea, the judge discussed with counsel the question of the appellant’s prospects of rehabilitation, and in that context his Honour observed that it was unlikely that while the appellant was in prison, he would have available to him treatment of the kind recommended by Mr Staios. That observation undoubtedly reflected his Honour’s awareness of the lack of appropriate resourcing of psychological and psychiatric services to those serving terms of imprisonment. Defence counsel conceded that it was unlikely that the necessary supports would be available in the prison setting.
Necessarily, that unfortunate circumstance affected the assessment of the appellant’s prospects of rehabilitation. Just as important, however, was the uncertainty — which defence counsel properly acknowledged more than once on the plea — about whether the appellant would be ‘able to continue his abstinence’ from alcohol following his release from prison. Given the significance of alcohol in the commission of this offence, that was a highly relevant consideration and provided an independent basis for the conclusion by the judge that the appellant’s prospects of rehabilitation, while positive, were nevertheless ‘somewhat guarded’.
For those reasons, we are not persuaded that the judge erred in his finding as to the appellant’s prospects of rehabilitation. Accordingly, ground 1 of the grounds of appeal must fail.
Ground 2 — submissions
Under ground 2, counsel for the appellant acknowledged that child homicide is, by its nature, a serious offence. Nevertheless, she submitted, the sentence imposed on the appellant was wholly outside the range of sentencing options available to the judge.
In support of that submission, counsel noted that the judge found that the appellant’s offending was not at the ‘more serious end’ of such offences.[18] The offending involved a single incident occurring over a short period of time. There was no history of violence by the appellant towards Flynn. The offending was unplanned. Further, it was submitted, the level of violence by the appellant was less than in a number of other cases of child homicide.
[18]Ibid [55].
Counsel relied on three particular propositions in support of the submission that the sentence imposed on the appellant was manifestly excessive. First, it was submitted that while there is no ‘usual’ non-parole period, nevertheless the non-parole period in this case, comprising 78 per cent of the head sentence, was significantly more substantial than that which is usually imposed in such cases. It was submitted that such a proportionately high non-parole period was inconsistent with the judge’s finding that imprisonment would adversely affect the appellant’s prospects of rehabilitation.
Secondly, counsel relied on the declaration made by the judge under s 6AAA of the Sentencing Act 1991, that but for the appellant’s plea of guilty, he would have sentenced the appellant to 11 years’ imprisonment with a non-parole period of nine years. Counsel submitted that in that way the appellant was afforded a ‘sentencing discount’ of some 18 per cent, in circumstances in which the judge had recognised that the most powerful factors in mitigation were the appellant’s acceptance of responsibility and early plea of guilty. The plea was of particular utilitarian value, as the judge observed that cases such as the present are notoriously difficult to prove.[19] Counsel acknowledged that this Court has, on a number of occasions, stated that a s 6AAA declaration is of limited assistance in an appeal against sentence, because such a declaration is notional and artificial. Nevertheless, it was submitted, the declaration is relevant in demonstrating the manifest excess of the sentence imposed on the appellant.
[19]Ibid [54].
Thirdly, counsel referred the Court to a number of sentences in previous cases involving (before 2008) manslaughter of young children, and of child homicide of young children, namely, R v Dempsey,[20] R v Kesic,[21] DPP v Arney,[22] DPP v McMaster,[23] R v Hughes,[24] DPP v Woodford,[25] R v Rowe[26] and R v Vinaccia.[27] It was submitted that the offending in the present case was not as serious as the offending in each of those cases apart from Vinaccia and Rowe. Further, in Vinaccia and Rowe each of the offenders had lied to family members and medical staff about what had happened, and neither of them had pleaded guilty. Counsel noted that Vinaccia was sentenced to eight years’ and six months imprisonment with a non-parole period of five years’ and six months and that Rowe was sentenced to nine years’ imprisonment with a non-parole period of six years. Counsel submitted that a comparison of the present case with Vinaccia and Rowe revealed that the sentence imposed in the present case was outside the range of sentences ordinarily imposed in such cases.
[20][2001] VSC 123 (‘Dempsey’).
[21][2001] VSCA 171 (‘Kesic’).
[22][2007] VSCA 126 (‘Arney’).
[23](2008) 19 VR 191; [2008] VSCA 102 (‘McMaster’).
[24][2005] VSC 312 (‘Hughes’).
[25][2017] VSCA 312 (‘Woodford’).
[26][2018] VSC 490 (‘Rowe’).
[27][2019] VSC 683 (‘Vinaccia’).
Based on those sentencing decisions, counsel submitted that the sentence of nine years’ imprisonment and the non-parole period of seven years, in the present case, were each manifestly excessive.
In response, senior counsel for the respondent accepted that the appellant’s offending in this case was not within or near the more serious end of the range of offences of child homicide. She submitted, however, that in cases involving that offence, the sentencing purposes of general deterrence and denunciation are of particular significance.
In that respect, counsel noted that the offence of child homicide was introduced by the legislature in an endeavour to encourage sentencing courts to impose higher sentences for the offence in view of the extreme vulnerability of young children. Counsel referred the Court to the second reading speech in support of the Bill[28] in which the Attorney-General noted that most sentences for manslaughter in such cases had between seven years and nine years’ imprisonment, and that it was contemplated that the new offence (child homicide) would result in the imposition of significantly higher sentences in the future.
[28]Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4413 (Rob Hulls, Attorney-General).
In respect of the first matter relied on by counsel for the appellant — the non-parole period — counsel noted that the judge, in his sentencing remarks, expressed the view that a period of parole of two years would ‘best serve [the appellant’s] interests and the interests of the community’.[29] The appellant did not have available a number of the mitigating circumstances which were present in other cases in which longer parole periods had been provided for. It was submitted that it was necessary that the non-parole period be relatively high in view of the gravity of the offending, and the importance of the sentencing purposes of general deterrence and denunciation.
[29]Reasons [63].
In respect of the second matter relied on by the appellant, counsel noted that this Court has observed, in a number of previous decisions, that the declaration by the sentencing judge under s 6AAA of the Sentencing Act is inherently artificial and is not an appropriate basis upon which to assess the weight attributed by the judge to an offender’s guilty plea.
Counsel for the respondent further submitted that an analysis of the sentences imposed in the previous cases relied on by the appellant demonstrated that the sentence imposed by the judge was not wholly outside the range of sentencing options available to his Honour. In that respect, counsel noted that although the offender in Vinaccia did not plead guilty, the trial was run on a particularly narrow basis in circumstances in which the facts were, substantially, not in issue. In Rowe and Vinaccia, the offenders were able to rely on their relative youth as a mitigating circumstance. Taking those matters into account, it was submitted that the head sentence and the non-parole period are not manifestly excessive.
Ground 2 — analysis and conclusion
In order to succeed, on the ground that the sentence was manifestly excessive, the appellant must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that the sentence was so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour’s reasons for sentence.[30]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) (‘Clarkson’); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
The starting point for consideration of ground 2 is that the offence of child homicide is, by its nature, a particularly serious criminal offence. It is constituted by the unlawful killing of a child under the age of six years in circumstances in which the offence would otherwise constitute manslaughter.[31]
[31]Crimes Act 1958 s 5A.
In the present case, it was not identified, on the plea, whether the offence charged against the appellant was constituted by an unlawful and dangerous act committed by the appellant, or alternatively, whether it consisted of gross negligence in his conduct in respect of Flynn. On the hearing of the appeal, it was common ground that that ambiguity did not affect the Court’s consideration of the sentence imposed.
As we have noted, the plea proceeded, and the appellant was sentenced, on the basis of the opinion of Dr Tully that the injuries caused to Flynn were the result of the appellant handling Flynn in an inappropriate manner, most probably by violent forceful shaking with associated impact against a firm or hard surface. Such conduct, by its nature, could constitute child homicide by an unlawful and dangerous act, or child homicide by gross negligence. As an unlawful and dangerous act, it involved the appellant causing the death of Flynn by handling him in a such a manner that a reasonable person in the position of the appellant would have realised that he was thereby exposing Flynn to an appreciable risk of serious injury.[32] Alternatively, the conduct of the appellant could be characterised as involving the degree of criminal negligence necessary to constitute child homicide, in that his conduct fell so far short of the standard of care that a reasonable person would have exercised in the circumstances, and involved such a high risk of death or really serious injury to Flynn, that it was deserving of criminal punishment.[33]
[32]Wilson v The Queen (1992) 174 CLR 313, 332–3; [1992] HCA 31 (Mason CJ, Toohey, Gaudron and McHugh JJ) (‘Wilson’); R v Klamo (2008) 18 VR 644; [2008] VSCA 75.
[33]Nydam v The Queen [1977] VR 430, 445 (Young CJ, McInerney and Crockett JJ); Wilson (1992) 174 CLR 313, 333; [1992] HCA 31 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v De’Zilwa (2002) 5 VR 408, 422; [2002] VSCA 158 (Charles JA).
The offence of child homicide was introduced into the Crimes Act 1958 by the Crimes Amendment (Child Homicide) Act 2008. As we have noted, in the second reading speech the Attorney-General explained that the offence was introduced to meet perceived concerns regarding the inadequacy of sentences for manslaughter of very young children.
In Woodford, this Court gave consideration to the question of the intent and effect of the introduction of the new offence. The Court concluded that in the absence of express language contained in the statute directing courts to impose heavier sentences for child homicide, it would contrary to authority and wrong in principle to interpret s 5A as containing such a direction.[34] Nevertheless, the Court identified two points that are relevant for the present appeal. First, it noted that by changing the name of the offence from manslaughter to child homicide, and by adding as an element of the offence the age of the child, the new offence ‘uncoupled’ sentences for child homicide from any constraints that may have previously existed in respect of current sentencing practices for the manslaughter of young children.[35] Secondly, and in that connection, the Court also noted, as a matter relevant to sentencing, that the age of the victim is a ‘central feature’ of the criminality involved in child homicide.[36]
[34]Woodford [2017] VSCA 312, [79] (Weinberg, Osborn and Priest JJA).
[35]Ibid [73].
[36]Ibid [80].
Thus, in assessing whether the sentence imposed on the appellant was manifestly excessive, the starting point is that the offence committed by the appellant was, by its nature, a serious criminal offence. It is well recognised that, in view of the vulnerability of young children, the sentencing purposes of general deterrence and denunciation are of particular significance in such cases. In essence, the courts have a responsibility to impose sentences which send a strong and unequivocal message to the community that any person who unlawfully causes the death of a young and vulnerable child by either criminal negligence or by an unlawful and dangerous act will, on sentencing, suffer a deprivation of his or her liberty for a significant period of time. It is only in that way that the courts can play their part in protecting the young and vulnerable members of our community, and in upholding the precious value which our society places on the lives of our young children.
Certainly, in the present case, the offending by the appellant was not as grave as the offending in other such cases which have come before the courts in recent years. Nevertheless, there were a number of serious aspects attaching to the appellant’s conduct. At the time of the offence, he was left in charge of Flynn. It was his responsibility to care for Flynn, and to ensure that Flynn was safe and protected. As the parent of Flynn, the appellant had a particular obligation of trust in respect of his care, wellbeing and safety.
The appellant has not revealed precisely how he caused Flynn’s death. Based on Dr Tully’s opinion, it is clear that his conduct in causing the death of Flynn departed so significantly from that required and expected of a parent as to constitute a serious form of offending. The courts are well aware of the difficulties and stresses involved in parenting young children. Nevertheless, parenthood involves particular responsibilities. The appellant’s violent conduct towards Flynn, involving, it would seem, violent forceful shaking with associated impact against a firm surface, violated the fundamental norms of proper parental care required of him.
Further, as the judge correctly found, the appellant’s subsequent conduct in knowingly telling deliberate lies about what had happened to Flynn, aggravated his conduct.[37] In doing so, the appellant prioritised his own self-interest over the welfare of his son Flynn while he lay close to death in hospital, and of the other victims of the offence, who had a right to be told the truth concerning the circumstances in which Flynn had suffered such serious injury.
[37]Reasons [52].
On the other hand, as the judge noted, the appellant’s conduct constituted a single episode of short duration, and could be contrasted with other cases in which the violence involved was more severe, more protracted and deliberate.[38] Nevertheless, for the reasons that we have discussed, the offending by the appellant was of such gravity as to warrant a significant sentence of imprisonment in order to vindicate the important sentencing purposes of general deterrence and denunciation.
[38]Ibid [55].
It was not submitted, in support of ground 2, that the judge failed to take into account any relevant mitigating circumstance on behalf of the appellant. The judge noted that the most powerful mitigating circumstance was the appellant’s plea of guilty, which was of significant utilitarian value. His Honour also noted that the appellant had no previous convictions and, as we have discussed, he accepted that the appellant was unlikely to reoffend. The judge also took into account that as a result of the current COVID-19 pandemic, the conditions of imprisonment would be more onerous.
All of those considerations were relevant mitigating circumstances, and were entitled to be given appropriate weight in the exercise of the judge’s sentencing discretion. In determining the appellant’s sentence, the judge was, however, required to weigh those considerations against the serious aspects of the appellant’s offending, giving sufficient weight to the sentencing purposes of general deterrence and denunciation that we have discussed. This Court could only conclude, under ground 2, that the judge’s exercise of the discretion has miscarried, if it could be demonstrated that the sentence was wholly outside the range of sentences available in the circumstances, notwithstanding the inherent gravity of the offence to which the appellant pleaded guilty, and the serious aspects of it.
It is in the face of those considerations that counsel for the appellant relied on the three points mentioned earlier: first, the length of the non-parole period; secondly, the 6AAA declaration; and, thirdly, sentencing dispositions in other cases which, it was contended, were comparable cases.
In respect of the first point, counsel placed some emphasis on the relatively high non-parole period fixed by the sentence as a proportion to the head sentence.
In Kumova v The Queen,[39] Redlich and Osborn JJA noted that while, in a majority of cases, the non-parole period is between 60 per cent and 75 per cent of the head sentence, there are a number of cases in which longer or shorter periods of parole have been fixed.[40] There is no ‘correct’ or ‘usual’ ratio which the non-parole period should bear to the head sentence.[41] It is well established that the considerations, which the sentencing judge is required to take into account in fixing a minimum term, are the same as those which are applicable to setting the head sentence. As the function of the prescribed parole period is to facilitate the rehabilitation of the offender, it follows that the weight which is to be attached to the sentencing considerations, and the manner in which they are relevant, will differ when fixing the non-parole period.[42]
[39](2012) 37 VR 538; [2012] VSCA 212 (‘Kumova’).
[40]Ibid 545 [27].
[41]Ibid 547 [34].
[42]Bugmy v The Queen (1990) 169 CLR 515, 531–2 (Mason CJ and McHugh J) 536–7 (Dawson, Toohey and Gaudron JJ); [1990] HCA 18; R v Bolton [1998] 1 VR 692, 696 (Callaway JA); Kumova (2012) 37 VR 538, 545 [27]; [2012] VSCA 212 (Redlich and Osborn JJA).
In the present case, the judge was well acquainted with the circumstances of the offending, and the mitigating circumstances available to the appellant. As discussed under ground 1, his Honour reached an informed conclusion concerning the appellant’s prospects of rehabilitation. It was in that context that the judge expressed the view that a period of parole of two years would best serve the interests of the appellant and the interests of the community.[43] While it may be accepted that the period of parole is relatively short as compared with other cases, nevertheless the appellant did not have available other mitigating circumstances, such as youth. Taking those matters into account, it could not be concluded that the period in which the appellant would be eligible for parole was inadequate. It does not, of itself, constitute an ‘indicator’ that the head sentence and non-parole period are manifestly excessive, as contended by counsel for the appellant.
[43]Reasons [63].
The second point, raised by counsel for the appellant, concerned the s 6AAA declaration by the judge. According to the appellant’s written case, the declaration meant the appellant was afforded a sentencing ‘discount’ of 18 per cent which, it was submitted, did not represent the kind of ‘discount’ that the guilty plea warranted in the circumstances.
As the Court pointed out in argument, however, reference to a declaration under s 6AAA of the Sentencing Act cannot assist this Court’s consideration of a grant of manifest excess. The reasons for this may be shortly stated.
First, as we have noted, the test whether a sentence is manifestly excessive is that articulated in Clarkson, namely, whether it was reasonably open to the judge to arrive at the sentence if proper weight were given to all the relevant factors, both aggravating and mitigating. Necessarily, in order to answer that question, this Court undertakes its own consideration of all the relevant matters and of the weight to be properly attributed to each of them. In that respect, the plea of guilty is one of many matters which needs to be taken into account. This Court must consider for itself what weight the plea deserved in the circumstances of the particular case.
Further, as this Court has emphasised on a number of occasions, the formulation by a sentencing judge of the s 6AAA declaration is, by its very nature, an artificial exercise. The determination of a sentence in a particular case is the product of a process of instinctive synthesis. In that process, the judge does not fix the sentence by adding to, and subtracting from, a starting point, periods of time which the judge attributes to particular sentencing factors. Such a process would be antithetical to, and inconsistent with, the long established and fundamental principles as to the manner in which sentences are determined in this State.[44] Indeed, in many cases, the plea of guilty does not operate in isolation as a mitigating circumstance. Of necessity it interrelates with, and to some extent, has a symbiotic relationship with, other mitigating circumstances, such as the offender’s cooperation and remorse, and the offender’s prospects of rehabilitation. Thus, it is not intellectually possible to disentangle the weight attributed to the plea from the weight given to the related mitigating circumstances.[45]
[44]See, eg, Saab v The Queen [2012] VSCA 165, [58]–[59] (Buchanan, Weinberg and Mandie JJA); Zogheib v The Queen [2015] VSCA 344, [60]–[64] (Kaye JA, Maxwell P agreeing at [1], Santamaria JA agreeing at [12]); Maybus v The Queen [2017] VSCA 125, [52] (Osborn and Kaye JJA); Kalofolias v The Queen [2017] VSCA 308, [44] (Maxwell P, Beach and McLeish JJA); Blango v The Queen [2018] VSCA 210, [59] (Whelan and Kyrou JJA).
[45]R v Flaherty [No 2] (2008) 19 VR 305, 308–9 [9]; [2008] VSC 270 (Kaye J); Giordano v The Queen [2010] VSCA 101, [45] (Mandie JA, Weinberg JA agreeing at [1], Bongiorno JA agreeing at [81]); Samac v The Queen [2011] VSCA 171, [88] (Ashley JA, Weinberg JA agreeing at [90], Hargrave AJA agreeing at [91]); DPP v Jones (2013) 40 VR 267, 293 [110]; [2013] VSCA 330 (Redlich and Priest JJA); DPP v Cooper [2018] VSCA 21, [56] (Weinberg, Priest and Beach JJA); Anderson v The Queen [2019] VSCA 42, [81] (Priest and Hargrave JJA).
The third point relied on by counsel for the appellant was based on a comparison of the sentence imposed in the present case with the sentences imposed in other cases. It was submitted that, by reference to the sentences imposed in those cases, the sentence imposed in the present case was well outside the range of current sentencing practices.
Before considering those cases, it is important to restate the principles which apply to the relevance of previous sentencing decisions which are relied on as ‘comparable cases’. Those principles have been considered in a number of decisions of the High Court[46] as well as in a number of decisions of this Court.[47] Two points are particularly relevant. First, as the High Court emphasised in Dalgleish,[48] while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless that factor is only one of a number of considerations which must be taken into account in the exercising of the sentencing discretion in a particular case. Secondly, as this Court has noted on a number of occasions, some caution needs to be exercised in identifying the appropriate sentencing range by reference to previous sentencing decisions. The exercise of the sentencing discretion in each particular case is necessarily the product of the balancing and synthesising of a number of different factors which can vary considerably between individual cases.[49]
[46]See, eg, Wong v The Queen (2001) 207 CLR 584, 591 [6]; [2001] HCA 64 (Gleeson CJ); Hili v The Queen (2010) 242 CLR 520, 534 [44], 535 [48]–[49]; [2010] HCA 45 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58, 74 [40]–[41]; [2014] HCA 2 (French CJ, Hayne, Kiefel and Bell JJ); R v Pham (2015) 256 CLR 550, 558–9 [26]–[28]; [2015] HCA 39 (French CJ, Keane and Nettle JJ); DPP v Dalgleish (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 (‘Dalgleish’).
[47]See, eg, Hudson v The Queen (2010) 30 VR 610, 616–18 [26]–[33]; [2010] VSCA 332 (Ashley, Redlich and Harper JJA) (‘Hudson’); Nguyen v The Queen [2016] VSCA 198, [71]–[72] (Redlich JA); DPP (Cth) v Thomas (2016) 53 VR 546, 606–11 [171]–[187]; [2016] VSCA 237 (Redlich, Santamaria and McLeish JJA).
[48](2017) 262 CLR 428, 434 [9]; [2017] HCA 41 (Keifel CJ, Bell and Keane JJ).
[49]Hudson (2010) 30 VR 610, 617–18 [28]–[33]; [2010] VSCA 332 (Ashley, Redlich and Harper JJA); Hasan v The Queen (2010) 31 VR 28, 38 [44]; [2010] VSCA 352 (Maxwell P, Redlich and Harper JJA); Fichtner v The Queen [2019] VSCA 297, [100] (Maxwell P and Kaye JA).
For present purposes, the principles were conveniently summarised in the following passage in the judgment of this Court in Lieu v The Queen:[50]
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases do not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[51]
[50][2016] VSCA 277.
[51]Ibid [46].
Bearing those principles in mind, we turn, briefly, to the sentences imposed in the other cases to which we have referred.
In that respect, we note that Dempsey, Kesic, Arney and McMaster each involved the offence of manslaughter. Taking into account the views stated by this Court in Woodford, the sentence imposed in the present case could not be characterised as being well outside the range of sentences demonstrated by those decisions.
Before examining the more recent decisions referred to, there is an important threshold point to be made about the difficulty in this case of drawing meaningful comparisons of offence seriousness. The difficulty arises because the appellant has never disclosed what he did to cause the fatal injuries. As noted earlier, the case has had to proceed on the basis of the inference drawn by Dr Tully from the nature of the injuries suffered by Flynn, namely, that there was ‘violent forceful shaking with associated impact against a firm or had surface’.
Even after abandoning his false account of how Flynn had been injured, the appellant would admit nothing more than that he had been ‘too rough’. It might be assumed that he acted in anger or frustration when giving the baby the ‘violent forceful shaking’ but this is unknown. All that is known is that the shaking, and the impact on a hard surface for which the appellant was also responsible, was violent enough to cause fatal brain haemorrhages and the bruising to his scalp. In addition, Flynn also was found to have bruising to his legs, arms and buttocks.
In Hughes, the offender fatally injured the four year old son of his partner by throwing him onto a bed in a fit of anger. The offender told his partner that the child was injured, but he did not tell her the truth as to how the child had been hurt. He initially persisted with a number of lies, including during the first two interviews conducted by the police, but ultimately, in a third interview, he made relevant admissions as to how he had caused the injuries. Like the appellant in the present case, the offender pleaded guilty at the earliest possible opportunity. He had available to him slightly stronger mitigating circumstances, including his age (25 years), which the sentencing judge considered to be ‘relatively young’, and he was remorseful. The offender was sentenced on the offence of child homicide to nine years’ imprisonment. He was also sentenced on two other charges of intentionally causing injury to the victim and to the victim’s brother. His total effective sentence was nine years and six months’ imprisonment with a non-parole period of six years and three months.
In Woodford, the offender in a burst of spontaneous anger stepped on the abdomen of the three year old daughter of his partner, lifting his other foot off the ground, thus placing his entire weight (some 100 kilograms) onto her stomach. The offender was 20 years of age at the time of the offence. In his police interview, he made full and frank admissions as to how he had fatally injured the child. The sentencing judge noted that the offender’s confession was integral to the ability of the prosecution to convict him. The offender was sentenced to nine years and six months’ imprisonment with a non-parole period of six years and six months. On appeal by the Director, the Court considered that the sentence imposed by the judge was particularly lenient. The Court concluded that if not for the frank admissions made by the appellant, it may well have concluded that the sentence imposed on him was manifestly inadequate. In dismissing the appeal, the Court also took into account the appellant’s relative youth.[52]
[52]Woodford [2017] VSCA 312, [90]–[91] (Weinberg, Osborn and Priest JJA).
Pausing there, while the offending in Woodford might have been more serious, as noted by the Court of Appeal, the offender had available to him, as a powerful mitigating circumstance, his frank confession to the police, in the absence of which he could not have been convicted. In addition, his youth was a relevant mitigating circumstance.
As noted, counsel for the appellant in this case placed particular weight on the sentences imposed in Rowe and Vinaccia.
In Rowe, the offender, who was 23 years of age, caused the death of his three month old daughter by shaking her in a fit of anger. He was sentenced to nine years’ imprisonment with a non-parole period of six years. As mitigating circumstances, the judge took into account that the offender had excellent prospects of rehabilitation. In addition, the jury on the first trial had been discharged without verdict, so that the offender had been required to confront the stresses of two criminal trials.[53] Thus, while the offender in that case did not have available, as a mitigating circumstance, a plea of guilty, nevertheless the absence of that factor was, at least to some extent, balanced by his younger age (23 years), the delay factor, and also by the consideration that the offending in that case was, to an extent, less serious than in the present case.
[53]Rowe [2018] VSC 490, [25] (T Forrest JA).
Finally, in Vinaccia, the offender caused the death of the three and a half month old infant son of his partner by shaking. The offender was then 22 years of age. He pleaded not guilty. On two occasions, the dates fixed for his trial were vacated. On the first trial, the jury was discharged without verdict. The offender ran a very narrow defence. He did not put in issue the manner in which he had caused the injury to the infant. The principal (if not only) issue on the trial was whether his conduct amounted to the requisite degree of dangerousness or negligence which, the sentencing judge observed, was quintessentially a jury question.[54] Thus, in that case the offending was, if anything, less serious than the present case. While the offender did not have available a plea of guilty, nevertheless he ran a confined defence, made frank admissions to the police, was remorseful and was youthful. In addition, the judge took into account as a mitigating circumstance the delay in the trial and sentence.[55]
[54]Vinaccia [2019] VSC 683, [107] (Croucher J).
[55]Ibid [116]–[118].
Taking into account the relevant differences between the circumstances of the cases to which we have been referred and the circumstances of the present case, we are not persuaded that the previous sentencing decisions relied on by the appellant demonstrate that the sentence is at odds with current sentencing practices. More significantly, we are not persuaded that those previous sentences support the proposition that the sentence imposed in the present case is manifestly excessive.
In conclusion, then, the offence committed by the appellant in the present case was, by its nature, a serious criminal offence. In sentencing the appellant, general deterrence and denunciation were of particular significance. While the appellant’s offending might have been not as serious as that committed by the offenders in some of the other cases, nevertheless there were a number of serious features attaching to it. Taking those matters into account, and giving appropriate weight to the mitigating circumstances relied on by the appellant and found by the judge, we are not persuaded that the sentence imposed on the appellant was wholly outside the range of sentencing options available to the judge. Accordingly, it follows that ground 2 must fail.
Conclusions
For the foregoing reasons, the Court is not persuaded that either ground of appeal should be upheld. The appeal must be dismissed.
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