DPP v Quarry [2004] VSC 15

8. During the ten months of your relationship with Ms Tate you frequently assaulted her. You again did so on the night of Wednesday, 7 August 2002. You were residing together and with your baby at Flat 3, 1 Besant Street, Hampton East, on the ground floor of a two storey block of flats. You and Ms Tate commenced drinking a large quantity of alcohol and consuming prescription drugs (benzodiazepines) from about 3.00 pm. The child was fed a bottle of formula milk by her mother, who put her into her bassinette in the lounge room. At about 10.00 pm you assaulted Ms Tate, hitting her to her face, arms and upper body. You were and are a very large, powerful man. Ms Tate sustained a blood nose and her clothing was torn. She fled to an upstairs flat, Flat no. 5, occupied by the Lidkers. You pursued Ms Tate upstairs but after a conversation with Ms Laura Lidker at the door of the upstairs flat you returned downstairs. Ms Lidker attended to Ms Tate's injuries. Some 20 minutes later, you returned to the upstairs flat, this time holding Sharni in your arms. You were admitted to the flat. You were very agitated and asked if the police had been called. Sharni was crying and you returned to your flat and obtained a dummy for her. When you returned upstairs you had a conversation with Ms Lidker. Ms Tate through earlier excessive alcohol ingestion fell asleep on the couch. At approximately 10.15 pm you went to leave the flat but were unable to wake Ms Tate. You slapped her across the face in order to wake her, causing her nose to recommence bleeding. She woke up and told you to "fuck off". You then attempted to punch her but were prevented from doing so by Ms Lidker, who told you to leave. You left, carrying Sharni and returned to your downstairs flat. Ms Lidker telephoned the police and ambulance and requested their attendance. Ms Tate remained upstairs during this time. You returned upstairs and commenced banging on the door but were not granted entry. You returned downstairs. No-one in the upstairs flat, including Ms Tate, had any expectation or warning of what you were to do next. In particular, Ms Tate had no expectation or warning that you would harm the child. In response to Ms Lidker's call, at 11.10 pm police and ambulance officers arrived. Some time later Ms Tate was taken from the scene by ambulance to the Sandringham Hospital. She was battered and bruised. Later medical examination revealed lacerations and substantial bruising to her head, arms and body with deep bruising to the jaw. Other ambulance officers remained at the scene to render such assistance as they could, given the potential of the situation.

11. The initial police presence at the scene was constituted by two members from the Moorabbin Police Station (Sergeant Torpey and Constable Floyd) and a police member from the Dog Squad (Senior Constable Carter). They obtained relevant information from Ms Lidker and then attended at your downstairs flat. The members observed that the blinds were pulled down and that a window was smashed. Sharni could be heard crying inside the flat. Senior Constable Carter knocked on the front steel security door, which was locked. He identified himself and asked that the door be opened. You replied: "Fuck off dogs. I've got a gun. I'll fuckin kill ya if you come in".

17. Senior Constable Carter assisted by Constable Floyd then sought to secure the safety of the child, who could be heard crying loudly, and to negotiate with you. You were asked to leave the baby at the door and then to back away from the door. When you were so asked, a loud bang against the front internal wooden door was heard. Three or four other loud thumps from inside the flat were also heard. You then said: "That was the baby and I hit it against the wall".

20. In the escalating situation the Special Operations Group was called. The present members continued to seek to resolve the situation peacefully. Sharni could still be heard crying inside the flat. You a number of times refused to open the door or surrender the child. You asked the police to kill you. After a period you said "It's gone. It's head's stuffed. It's too late". At that point, Sharni could no longer be heard crying. You called out that you had broken the baby's arm and killed the baby. Further police arrived. They positioned themselves near the broken window and by moving a blind could partially see into the flat. You could be seen in the lounge, holding Sharni in your left arm. Sharni appeared motionless and limp with her arms dangling down. In your right hand you were holding a large knife. At times you held the knife to Sharni's throat and to your throat. You continued to threaten to kill the police if they entered the premises. You were asked to pass Sharni to the police through the window. You refused, with more threats.

23. At 11.45 pm, a qualified police negotiator, Senior Constable Gatt, arrived at the scene.

26. Senior Constable Gatt was briefed by other members and himself assessed the situation. At midnight, through the broken window, he commenced negotiations with you. The negotiations continued until 2.30 am, when members of the Special Operations Group, who had arrived at 1.15 am, stormed the flat.

29. At midnight, Senior Constable Gatt introduced himself to you through the broken window. He talked to you, sought to reassure you, sought to engage you in communication, sought to reason with you. He told you he was there to help you. He told you the police were only there to help you, that they wanted to resolve the situation peacefully and that their concern was for the condition of the baby. He told you that you would be safe and that no-one would hurt you. Your response was to tell him to "fuck off" and "fuck off or I'll kill you". He asked you to pass the baby out but you said you would not let her go. You continually threatened the police with knives and also said you would shoot them. You said you wanted to be shot. Senior Constable Gatt asked you why you didn't want to give the baby out and you gave no reason. You then asked to speak to Ms Tate. Senior Constable Gatt said he would see whether that could be arranged but that it would be difficult in the circumstances. He told you that it would be more possible if you let the baby go. For some time you refused. Eventually you said "I'll give her to you if you let me talk to Sonia". Senior Constable Gatt told you you didn't have to come outside to talk to Sonia and asked that you give the child over first. You replied "I will speak to her and then I'll give you the baby".

32. Then, in a significant exchange, Senior Constable Gatt asked you what it was that you wanted to tell Sonia. You replied "I want her to see what she has done, how she's fucked it up. I want her to live with this for the rest of her life".

35. Senior Constable Gatt told you that ambulance officers were at the scene and were in a position to help the baby. You yelled "She's fucked. She's almost there, almost gone. She's breathing only every few minutes. If you don't get Sonia quick, she's gone. If you come in, I'll kill her". A distinguished pathologist, Dr D.L. Ranson, gave evidence before me that the breathing described in precise detail by you signifies brain damage through serious head injury. Senior Constable Gatt observed the floppy appearance of the child. You said "Hurry up, she's nearly dead. I want you to get Sonia. What's taking so long?" You said you loved Sonia. After further discussion Senior Constable Gatt asked you about the condition of the child and you replied "She's dead I'll do her". You paused and then deliberately dropped the child one metre to the floor. The fall made a thud as the child hit the floor. You paused, picked up the child and said "She's fucked".

38. At 2.30 am in a coordinated operation members of the Special Operations Group stormed the flat. To that point attempted negotiations had continued. You had been repeatedly asked to put down the numerous knives you were holding and to allow medical aid to assist the infant inside the flat. You had refused, continued to abuse and threaten the police, and said "This door is heavily locked and I will drive these knives into anyone who tries to come through it". At 2.30 am the police donned gas masks, o.c. gas was discharged into the flat, and simultaneously a distraction grenade was thrown through the kitchen window and the front door broken down by a battering ram. Police rapidly entered and a violent struggle ensued. You were holding a large knife and had numerous other knives near you. In the struggle the knife you were holding slightly cut the face of an arresting officer, Senior Constable Zoumbaris. You were subdued. The still body of Sharni was found on the floor behind the front door. She was immediately removed for paramedical assistance. Her body was cold. At 2.32 am she was pronounced deceased.

41. I commend the work of the police negotiator, Senior Constable Gatt and the many other police members present at the scene. They were faced with a very difficult situation in which you, a large powerful man in your own home, had full control over a totally vulnerable infant. Had the police initially sought to force entry to your flat, in the few moments needed forcibly to enter the premises to rescue the child the police entry could well have precipitated your killing this child. Rather, the officers sought to protect the child by the reasoning skills of negotiation. I consider that the officers acted with responsibility and prudence and I commend them.

44. At the scene after your apprehension the following exchange occurred between you and Detective Senior Constable Gibson (D. 805):

"Q: Do you know what has happened here? A: I killed my daughter. ..... Q: How did you do that? A: I won't lie. I threw her against the walls a few times. Q: How many? A: Five. Q: Why did you do that? A: Because my missus left me."

48. You were removed from the scene and from 11.30 am that Thursday, 8 August 2002 were interviewed by officers of the Homicide Squad. I have studied the videotape of that interview. You voluntarily answered all questions asked of you. You said of your little child that you "chucked her on the floor" (Q. 65) and that "when the coppers were knocking on the door, I think I might have pushed her into the door" (Q. 67) "two or three" times (Q. 76). You said you were angry (Q. 157) and that you smashed the furniture (Q. 160). You said you had not hurt your child until "the cops turned up" (Q. 174), that Sharni was crying "so I threw her on the floor" (Q. 177). That was "to stop her from crying" (Q. 181). When the police "knocked at the door" you "pushed her into the door" (Qs. 183-184) "to stop her from crying" (Q. 187). You said you "didn't deserve to have the cops called on me (because) it was just a domestic" (Qs. 190-191). You said "I didn't mean to do it ... I don't know what just hit me. It just happened and I've never even laid a finger on her. It's just that I was drunk and too many pills and then me and the missus had the fight and the coppers turned up and it all just escalated to there" (Qs. 228-230). You described Sharni as "a beautiful baby" (Q. 238) and "the best thing that ever happened to me" (Q. 239). When asked why you did not give Sharni to the police when requested you replied: "I don't know. I suppose I was just scared they'd take her away and Sonia would go and I'd be left with nothing" (Q. 326). At the end of the interview (Qs. 445-450) you expressed some remorse for what you had done and said you were sorry. You were charged with the murder of your daughter and with assaulting Ms Tate.

51. A distinguished pathologist, Dr D.L. Ranson conducted an autopsy on the body of Sharni on 8 August 2002. He found extensive bruising of the child, including pattern bruising indicating very forceful squeezing of the child's right hand, fracture of the radius of the right forearm and fracture of the left clavicle. However the cause of death was extensive head injury. There was widespread subcutaneous haemorrhage of the head and five fractures of the skull. The scalp showed subcutaneous haemorrhage over the top, back and sides of the head. The haemorrhage formed a diffuse haematoma that measured up to 2 cm in maximal thickness at the top and back of the head in the vicinity of the external bruises. The skull and cranial vault showed widespread bony injury with a right mid parietal fracture extending from the right temporal region posteriorly through to the occipital suture on the right side. A further fracture line extended from the occipital suture on the left side through to the floor of the posterior cranial fossa on the right side. An additional fracture line extended superiorly for a distance of some 3 cm from the mid part of the right occipital suture into the posterior aspect of the right parietal bone. A further substantial fracture line extended vertically through the left parietal bone for a distance of some 7 cm in the coronal plane. The large fracture in the right parietal bone was widely separated and torn portions of dura and brain tissue protruded through the bony defect which was widened to between 1 and 1.5 cm. The dura, the thick outer membrane around the brain, appeared defective in the vicinity of the skull fractures. There was evidence of patchy extradural and subdural haemorrhage in the vicinity of the fracture line.

54. Dr Ranson gave evidence before me that the impacts of the child's head to the front door or the wall were the most likely cause of the fractures of the child's skull and that the dropping of the child one metre to the floor would not cause the extensive pattern of skull fracture he found on autopsy. In cross-examination he agreed that the head injuries could have been caused by as few as two or three applications of force. The combined impacts caused death. It was not possible to give a precise time of death. Dr Ranson said that at the time you dropped the child to the floor she "was already suffering from a very significant head injury which in all probability was a fatal injury which was proceeding inevitably to death" (T.27). For the skull injuries to occur, including thick areas of the skull, considerable force was necessary.

57. Mr Quarry, as I have said you were born in 1970 in northern Tasmania. You had two younger siblings. You had a difficult upbringing and were assaulted by your father. You had behavioural problems by the age of 12 years. Your mother took you to a Launceston psychiatrist, Dr I. Martin in an attempt to address the causes of your behaviour, which included assaulting your mother and siblings and damaging property. Since that time much medical attention has been given to you. You commenced drinking alcohol at 15 years and left home at 19 years. From 17 years of age you developed a serious problem of alcohol abuse and from 19 years abuse of a number of drugs both prescription and illicit but not amphetamines or heroin. You had two relationships with women, by the first of which you have two children now aged 9 and 6. You regularly exhibited violence, particularly when drunk. You regularly committed offences. By the year 2000 you had 84 convictions sustained on 24 occasions - from 10 December 1987 (just before your 18th birthday) to 29 June 2000. Many were driving convictions, of relevance here only because they show your alcohol problem and your unwillingness to comply with the law. You have 12 convictions of limited violence to the person. None was for egregious violence although some were sufficiently serious to involve sentences of imprisonment. Two convictions were sustained in the Supreme Court of Tasmania. Three things are striking about your criminal convictions. The first is that time and time again the courts have sought not to be merely punitive but to address the causes of your behaviour. Thus the moderation of the sentences involved, the repeated suspended sentences, the rehabilitative terms of the sentences and the battery of medical and allied services directed to your aid. The second striking thing about your criminal convictions is that they demonstrate your abuse of alcohol and of other drugs. The third is that they demonstrate that you are a man of violence. Your psychiatrist, Dr I. Martin, in a report dated 30 June 1999 described you as "an explosive sociopath" (D. 670).[1]

60. Ultimately, on 21 May 2000 you attended the Missiondale Drug and Alcohol Recovery Centre, Evandale, Tasmania (just south of Launceston) as part of a suspended sentence imposed upon you in the Supreme Court of Tasmania at Launceston on 19 April 2000 for more offences of violence. You were there until October 2000. You left without completing the Centre's program and before dealing with "the major underlying issues to (your) dependency to alcohol" (statement of P.B. Jones, senior counsellor at Missiondale: D. 675). You returned there in May 2001 and it was there that you met Ms Tate in July 2001. You and she left the Centre together in September 2001.

63. I have examined the various reports and letters of the psychiatrist, Dr I. Martin, of Launceston contained at D. 665-671 covering a period from 1982 to 2002. In his report of 30 June 1999 Dr Martin said:

"Mr Quarry is an explosive sociopath. He has an extremely short fuse, particularly when drunk, but very often even when sober."

Dr Martin diagnosed you as having "a personality disorder rather than a psychotic illness". (D. 666). He said:

"The personality disorder is 'Anti-social', formerly known as sociopathy."

69. I also have considered the report of the psychiatrist, Dr A Forrester of Melbourne and dated 30 January 2004 tendered as exhibit 1 on your behalf on the plea. Dr Forrester had regard to a relevant body of material including the reports of Dr Martin and he had psychiatrically examined you on 29 January 2004. He diagnosed you as having a mixed personality disorder with alcohol dependence. As a reaction to these offences and to your consequent situation you were depressed.

72. You suffer no psychiatric illness or intellectual disability. You are of moderate intelligence.

75. Your actions to Sharni have left her mother Sonia devastated and Sharni's grandfather deeply afflicted. I have had regard to their victim impact statements tendered in evidence before me. As I said to counsel in discussion, the statements are most moving and impressive documents.

78. Your counsel, Mr Chadwick, in a comprehensive and thoughtful plea made a number of submissions on your behalf. He sensibly concentrated his submissions upon the proper sentence to be imposed on Count Two, the count of murder, although he did not ignore or undervalue Count One, the count of intentionally causing injury to Ms Tate or Count Three, the count of recklessly causing injury to Senior Constable Zoumbaris. I proceed on that basis. First Mr Chadwick submitted that a significant matter to be taken into account in your favour is your pleas of guilty on 17 November 2003 to the counts before me. He submitted that although you pleaded not guilty to the count of murder at the conclusion of the committal on 20 May 2003 and again in this Court when first presented on 2 September 2003, you had always been prepared to (and in fact did) acknowledge your culpability for killing your child. Mr Chadwick submitted that the reason for the earlier pleas of not guilty was the responsible concern of your legal advisers to ensure that on the count of murder you were fully and properly advised as to your legal situation before a plea of guilty was entered. I agree with Mr Chadwick that that was a responsible consideration and that I should proceed on the basis that you were always prepared to acknowledge your culpability. Indeed you were direct and responsive in all answers in the formal interview on 8 August 2002 at the Homicide Office. Accordingly I do so proceed. Mr Chadwick next submitted that the terrible events that night in your flat occurred in the context of excessive drinking by you combined with substantial intake of benzodiazepines, a combination you had not ingested for a considerable time (and you had not consumed alcohol alone for a considerable time until two weeks before, when your intake was cautious and limited). Mr Chadwick further relied upon your history of severe alcohol and prescription drug abuse, your difficult upbringing and limited education, the fact that the admittedly frequent violence committed by you was not extreme violence, and that you had demonstrated albeit for limited periods a capacity to abstain from alcohol abuse and from violence. Mr Chadwick relied as a significant matter upon the fact that you had not previously abused Sharni, and indeed there was clear evidence that you loved the child and properly cared for her; that you had never physically abused Ms Tate's other two children; and that there was no admissible or relevant evidence that you had ever abused the two children of a previous partner of yours. Mr Chadwick further relied upon the fact that your actions that night were not premeditated. Finally he relied upon your geographical isolation in Victoria as an added burden upon you of your imprisonment and submitted that you were remorseful for your conduct. As I said to Mr Chadwick during discussion, I consider his presentation was most helpful and comprehensive in a difficult case.

81. There are a number of elements of Mr Chadwick's submissions with which I agree. Plainly the fact that you have pleaded guilty is significant. Further you should be credited with your acknowledgment of your culpability from the outset, although for the proper reasons articulated by Mr Chadwick that acknowledgment was not initially translated into a formal plea of guilty. Next, yours is not a case of continual (that is, antecedent) child abuse. There is positive evidence that you loved Sharni and properly cared for her (D. 575). There is clear evidence you did not physically abuse Ms Tate's other two children (D. 574). The evidence (insofar as it is admissible: D. 624 and 629: D. 862 is hearsay) of abuse of a previous partner's children is remote in time and accordingly I totally disregard it. I also put aside completely the final paragraph (under the heading General Comments) of each of the victim statements tendered before me.

84. However, having given full consideration to the matters relied upon so ably by your counsel, both individually and in combination, the following realities remain. As to your plea of guilty (which as I have said I take into account) the case against you was overwhelming. As to your lack of premeditation, you do not need premeditation. You regularly launched into violence without premeditation and you knew you did. As to alcohol and drugs, you knew exactly what you were doing in the flat, and your conversations with the police negotiator showed full clarity of mind. Your later police interview showed full clarity of mind also. Further, alcohol and tablets was a well worn path by you, you were well familiar with it, and you knew precisely what was at the path's end. Alcohol and tablets do not avail you before me. Rightly you are to be given credit, and substantial credit, for caring for Sharni during her pitifully few days of life and for not physically abusing other children. However that is more than offset by your deliberate, persistent, calculated conduct over time of gross and deadly abuse of your own daughter that night in your flat. Further, your gross and deadly abuse was inflicted by you upon your daughter simply because you were in a rage that Ms Tate had fled and that the police had been called. Your rage was intensified because you believed that the calling of the police would involve you in further difficulty from outstanding criminal matters in Tasmania. Your deadly rage then descended into an act of punishment to Ms Tate for being, in your view, the cause of the trouble you then were in. Not only like many violent men did you blame the female victim; you killed your child in demonstration of that blame. The killing of Sharni is in the worst category of murder.[2]

87. Before proceeding to sentence for the murder of Sharni, I sentence you on the other two counts. You have served 548 days in pre-sentence detention on account of these three charges and pursuant to s.18(4) Sentencing Act 1991 I declare those 548 days as already served under each of the sentences I today impose and so certify. I consider your offence on Count One as serious. You had a long history of domestic violence, and while you are not sentenced for your history but are sentenced for your conduct on the night of 7 August 2002 to Ms Tate, it is clear that special deterrence is highly relevant to you on Count One. So is general deterrence. I sentence you for intentionally causing injury to Ms Tate to five years' imprisonment. On Count Three, you knew that the persons you were fighting were police officers acting in the lawful execution of their duty. Police acting properly are entitled to the full protection of the law. However this is a recklessness count and you were affected by o.c. gas. On Count Three I sentence you to one year's imprisonment.

90. Finally I sentence you on Count Two, the murder of Sharni. As I have said, this crime is in the worst category of murder. It was not premeditated as was the case of Dean Williamson[3]; but you do not need premeditation. You have pleaded guilty, unlike Mr Williamson; but a plea of guilty does not necessarily involve a sentence less than the maximum. It usually does, but not always. Sometimes the evidence is so overwhelming and the crime so egregious that a plea of guilty does not result in a sentence less than the maximum. That is the case here. In your case, Mr Quarry, the manifold elements of sentencing come together. The community condemns your conduct. You are to be punished for your conduct. Others, and you, need to be deterred from the deliberate killing of vulnerable children. Although reformation is always important, in your case it must give way to the other elements of sentencing. Sharni was totally vulnerable in your hands; you owed her a profound duty of care; you abused that duty; you killed her by a series of deliberate and repeated acts of violence over time; and you did so initially out of rage for being reported to police and then to punish her mother, your partner. This is not a case of one blow or a very brief shaking delivered in a momentary loss of self-control and which had tragic consequences. Your dealings with the police negotiator while the child was dying in your arms were at the depths of callousness and of manipulation. Instead of enabling your child to receive the benefit of the police and ancillary services which were consistently offered to her, you used your grievously injured child as a bargaining pawn. I said in Williamson:

"The intentional killing of a child without psychiatric illness or other significantly mitigating factor will ordinarily be met with life imprisonment of the offender."[4]

That principle applies in your case, Mr Quarry. You suffer from no psychiatric illness or intellectual impairment.

95. For the murder of Sharni Montaana Quarry I sentence you to life imprisonment. It is appropriate given your age and the Court's desire to foster rehabilitation that a minimum term of imprisonment be set.[5] I direct that you serve a minimum term of 24 years' imprisonment before becoming eligible for parole.

[1] Erroneously transcribed in Exhibit 1, the psychiatric report of Dr A. Forrester of 30 January 2004 at p.4 as "psychopath".

[2] For a crime to be in the worst category it need not be of the worst example imaginable: R v Dumas [1988] VicRp 8; (1988) VR 65.

[3] DPP v Williamson (2000) VSC 115, 31 March 2000.

[5] Iddon and Crocker (1987) 32 A. Crim. R. 315.