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.