DPP v Arney [2007] VSCA 126

2 This is a Crown appeal against a total effective sentence of nine years' imprisonment, with a non-parole period of five years, imposed on the respondent on pleading guilty to one count of manslaughter and one count of recklessly causing serious injury. The victim of both offences was the respondent's five-month-old daughter.

3 The offence of manslaughter was constituted of the respondent punching the victim in the abdomen. The blows split her jejunum, which is part of the small bowel, causing peritonitis and then death. The offence of recklessly causing serious injury, which occurred some time before the homicide, was constituted of the respondent allowing the victim's head to come into contact with a clothes cabinet drawer or the slats of a cot, resulting in a five-centimetre fracture extending through the skull with haemorrhaging and slight swelling of the brain, and multiple injuries of varying age including fractured ribs and fractured skull and damage to the liver.

4 When first asked by police whether he knew anything about the infant's head injuries, the respondent replied that the child may have rolled over in the cot when the child's grandmother put her there. Then, when taxed about the cause of the abdominal injuries, the respondent intimated that he knew more than he had told. After being cautioned, he claimed that the head injuries had been the result of the child being dropped and hitting her head on cupboard doors, or falling down into a drawer, and he admitted that he had caused the abdominal injuries by punching her in the abdomen. He said that he could not tell how many times he had hit her because he was a passionate man and sometimes got frustrated when the child was in his care. He said that it had happened more than once, although to begin with he claimed that he could not say how many times. He said that his actions had been the result of pressure to do with work, family life, a brand new baby, and that it just got hold of him. He said that he had been upset at a lot of different things. He took his anger out in other forms, and one way to relieve tension was to punch something. He admitted that he had hit the infant in the stomach within the last three days. He said: "I would possibly have said yes, it wasn't yesterday, but I'm sure it probably would have been within the last three days." He said that the blows had been delivered with reasonable force and that the child had cried. Then, when asked further about the child's fractured ribs, he said: "I would have aimed for [the stomach], but probably missed, so that's what could account for that."

5 He was subsequently interviewed whilst being videotaped. He admitted that during the five months that the child had been alive there could have been up to ten occasions on which he had hit her. He said: "I punched her, and the reason for that was my fits of passion because I was upset, because I'd been depressed and because, like, of the situations I've been in. There have been many times when I've only punched her once in the stomach, but I'm sure that there are times when there may have been once, twice, three times." He said that he did not punch her on a daily basis. It was rather "like sometimes, you know, you get so angry that you just burst, you know, just things go wild", and that, "like the times that I punched her, there were a lot of things going on in my life. Those were the things that were contributing to me outbursting my anger in that way." He said that at some stages he resented the baby being in the family unit and there were times when he absolutely hated it. He considered the child an intrusion in his life and felt some resentment towards her because of that. Then he added this:

"The times that when I did punch her, that when I was going through all these different things, problems with work, problems with the wife, problems with all these different things, you know, consciously and subconsciously, I think that that may well, well, it would be so much better if she wasn't around, you know, never born."

6 Questioned further, he admitted that as well as hitting the child when he was looking after her at home, he had also hit her in the car, but he said that: "Because of where she was seated in the car, the punches were not that hard. It hurt, but there wasn't that much force behind it." When asked why he had punched the child in the stomach, he said that:

"I mean one thing I've learnt, you know, getting beat up at school, so I mean, if I ever punched Rachel Joy in the face, sure, there's going to be like a huge bruise, and that's going to come up, and people are going to ask questions."

7 At the time of committing the offences, the respondent was 24 years of age, six foot four inches in height and weighed 100 kilograms. He had been married to the mother of the child for less than a year and, because the child's mother was better qualified, and therefore better able to earn an income than he was, he stayed home to look after the child while the child's mother went out to work. As the sentencing judge found, financial pressures, and the pressure of living in a bungalow in the back yard of his wife's family home, led the respondent to become depressed, angry and frustrated. He resented the circumstances that his wife had less time for him because of the need to care for the child; he had a disposition to become easily aroused to anger; and there were occasions when his anger got the better of him.

8 The judge had before him two reports prepared by Dr Danny Sullivan, a consultant psychiatrist, whose ultimate diagnosis was that the respondent was suffering from adjustment disorder with depressed mood. The judge took the view, therefore, that whilst general deterrence was a significant consideration in imposing sentence, it could be moderated to a limited degree by the respondent's mental state at the time of the offences. The judge was persuaded that the respondent was remorseful and that the respondent's offending was out of character. His Honour was also presented with numerous testimonials in which it was said that the respondent was ordinarily known as a kind and patient man. The judge was however of the view that the respondent's offending was more serious than a mere momentary loss of self control, and so warranted a long prison sentence.

9 Bearing in mind current sentencing practices, as the judge was bound to do, his Honour came to the view that a sentence of seven years' imprisonment on the count of manslaughter answered that description, and that cumulation of two years of the sentence of four years' imprisonment imposed on the count of recklessly causing serious injury was as much as was required.

10 The Director submits that this case was at the worst end of the spectrum of unintentional homicide by a parent of his or her child, and that accordingly it warranted a sentence of considerably more than the seven years' imprisonment that was imposed. He argues that, inasmuch as the attack which caused death was not an isolated incident, but one of a number to which the respondent admitted, it may be seen in context to have involved a degree of deliberation which in most cases of this kind is lacking. He further contends that it is plain from the respondent's admissions that the respondent struck the child deliberately, and with the intention of causing an injury at least sufficiently serious that he foresaw that if inflicted on some other part of the body it would be likely to show. On that basis, the Director argues that, as compared to some other cases of this kind in which it has been accepted by the Crown that injuries were unintentional,[1] this case stands as one of manslaughter by unlawful and dangerous act of a much graver kind,[2] and consequently that a sentence of only seven years is so far short of the mark as to shock the public conscience.

11 For the respondent, it is submitted that a head sentence of seven years is plainly not so light as to be regarded as manifestly inadequate. To the contrary, it is said, it should be seen as the product of the judge properly taking into account and synthesising all of the relevant considerations in an appropriate fashion. Alternatively, it is contended that, even if the sentence were inadequate, the shortfall is plainly not such as to constitute an error of principle, or at least is not sufficient to warrant appellate intervention.

12 In my view, the Director's submissions are compelling. I accept that, as a count of unlawful and dangerous act manslaughter, this offence stood towards the upper end of the scale of seriousness of cases of this kind. I also accept the Director's submission that, given its seriousness, it warranted a very substantial sentence. I take the view too, that, despite the mitigatory considerations to which the judge referred, a sentence of only seven years for this class of offence, in the circumstances in which it was committed, was extraordinarily merciful. Other things being equal, and despite the respondent's psychological condition, I consider that one might have concluded that a head sentence on the count of manslaughter of nine or ten years was within the bounds set by previous cases.

13 While recognising that comparison between cases of manslaughter is an exercise of limited utility,[3] the comparison which seems to me to be closest is to the sentence of ten years, with a non-parole period of seven years, which was imposed in R v Kesic,[4] and in that case it should be noted that the offending was on one view of the matter not as morally culpable, inasmuch as it involved the accused in shaking the child after reaching a stage of desperation in the course of caring for three small children and did not involve the out and out sort of violence apparent in this case in the repeated abdominal punching of an infant.

14 But there is more to it than that. Sentencing judges are bound by law to have regard to current sentencing practices as one of the considerations relevant to the sentence to be imposed. But they are not necessarily bound to impose a sentence which is within the bounds set by previous cases. In truth, each case is unique, and accordingly it is always possible that a sentence may properly rise above, or fall below, the greatest or lowest sentences for that sort of crime hitherto imposed. The measures of manifest excessiveness and manifest inadequacy are informed by previous experience. They are not circumscribed by it. The requirement to have regard to current sentencing practices does not forever foreclose the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Rather, in the scheme of things, it is likely that over time views will change about what is necessary in particular classes of case, and when that occurs, that the notions of manifest excessiveness and manifest inadequacy will pro tanto be revised.

15 In sentencing offenders in cases of the kind with which we are concerned, it has been common for courts to refer to the gross breach of trust which is involved in the offence and to speak in terms of the need for a sentence which is adequate to express society's abhorrence and denunciation of homicidal offences against defenceless children, and which will provide a level of just punishment and specific and general deterrence sufficient to guard against re-offending and similar offending by others. Those sentiments accord with the recognition by Parliament of the seriousness of the offence of manslaughter generally as manifested in the increase in 1997 in the maximum penalty for manslaughter from 15 years' to 20 years' imprisonment. Nevertheless, for a long time it has remained common for courts to impose sentences in cases of this kind in the order of something less than half the statutory maximum and thereby to create a situation in which current sentencing practices appear to ill accord with the requirements of just punishment and specific and general deterrence. It has resulted in sentences which fail to represent the seriousness of the individual circumstances of the cases that come before the court.

16 In my view, the proper exercise of the sentencing discretion in this case requires the imposition of a sentence of substantially more than the sentence of seven years' imprisonment which the judge imposed and, in the result, I am persuaded that the sentence was manifestly inadequate.

17 If the other members of the Court are in agreement with that conclusion, it will follow that the sentencing discretion is re-opened and it will be necessary to re-sentence the respondent afresh. In that event, and in view of the principle of double jeopardy as it applies to Crown appeals against sentence, I would impose a sentence on the count of manslaughter of nine years' imprisonment, and for the avoidance of doubt I emphasise that, but for the requirements of double jeopardy, it would be significantly more than that. On the count of recklessly causing serious injury, however, nothing which I have heard today has persuaded me that the judge was in any way in error in the sentence of four years which he imposed, and accordingly, on that count I would re-sentence the respondent to four years' imprisonment, of which two years should be served cumulatively on the sentence imposed on the count of manslaughter.

18 As to the non-parole period, there is perhaps something to be said for the view that the respondent's early release into the community would facilitate his rehabilitation. The respondent is relatively young although by no means a child. He has no prior criminal convictions. The evidence was that he had had a degree of education and was looking for more. It was said that he had acquired a deep religious faith. At the time of sentencing he still had the support of his wife and he had the unqualified support of his parents and siblings and broader family. And, in Dr Sullivan's opinion as expressed in his report, the respondent's mood swings were likely to resolve after sentencing and he would benefit from more education, counselling and antidepressant medication. But in a case of this kind, involving the bashing of a tiny defenceless infant resulting in death, and for no better reason than that the respondent was angry,[5] I do not regard such considerations as sufficient reason to set shorter than usual non-parole periods. And, in addition to that, in a case of this kind one must take particular care to guard against the possibility of setting a non-parole period so short that it may undermine public confidence in the sentencing process.[6] All things considered, I would set a non-parole period of eight years.

Conclusion

19 For the reasons which I have given, I would allow the appeal and set aside the sentence passed below. In lieu thereof, I would re-sentence the respondent on the count of manslaughter (count 2) to a term of nine years' imprisonment and on the count of recklessly causing serious injury (count 1) to a term of four years' imprisonment, of which two years should be served cumulatively on the sentence imposed on count 2, making for a total effective sentence of eleven years'

imprisonment. I would further order that the respondent serve not less than eight years' imprisonment before being eligible for parole.

20 I agree, and specifically wish to associate myself with the views expressed by Nettle JA concerning not only the abhorrence with which the conduct of the respondent is to be considered, but also the importance of vindicating the values of this community and the rights of a dead child. It is deeply saddening to have to accept that any human being could engage in the kind of abuse that led to the death of a five-month-old infant in this case.

21 The manslaughter in this case occurred as the result of a vicious attack on a defenceless baby aged only five months. The attack was not an isolated incident arising from a momentary loss of self control. The respondent admitted he had hit the baby previously and that he had deliberately punched her in the abdomen so that the injury would not be detected by others. General deterrence has to be given considerable weight in sentencing the respondent, despite his remorse and his psychological condition.

22 I agree with Nettle JA that the sentence was manifestly inadequate, that the appeal should be allowed and that the respondent should be re-sentenced as Nettle JA proposes.

The sentences imposed below are quashed and, in lieu thereof, the respondent is sentenced as follows:

On count 1 - four years' imprisonment; and

On count 2 - nine years' imprisonment.

The Court directs that two years of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 2, making a total effective sentence of 11 years' imprisonment.

A non-parole period of eight years' is fixed.

It is declared that the period of 555 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

2. The Court grants to the respondent an indemnity certificate pursuant to s 15 of the Appeal Costs Act 1998.

[1] See for example, R v Thompson [2004] VSC 288[46]; R v Mietto [2002] VSC 551 [40].

[2] Cf R v Dempsey [2001] VSC 123 [7]; R v Jones [2002] VSC 602 [32].

[3] Ward v The Queen [2006] NSWCCA 321; (2006) 166 A Crim R 273, 288 [70].

[4] [2001] VSCA 171.

[5] See and compare R v Quarry [2005] VSCA 65; (2005) 11 VR 337, 344 [25].

[6] R v VZ [1998] VSCA 32; (1998) 7 VR 693 [12]-[15]; R v Pope [2000] VSCA 108; (2000) 112 A Crim R 588 [28]; DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85 [43].