Tuesday, 23 September 2003
PAUL GEOFFREY HILL v REGINA
Judgment
1 MEAGHER JA: The appellant, Mr Paul Hill, seeks leave to appeal against the severity of a sentence of 8 years imposed on him by Ireland AJ in the Supreme Court at Sydney on 2 November 2001. Charged with murder he had pleaded guilty to manslaughter, and the Crown had accepted that plea. The victim was aged a little over 2 years; Mr Hill had been living with a Leanne Eriksson, who was the mother of the victim, called Tristen. Tristen met his death on 23 April 2000.
2 Mr Hill and Miss Eriksson had lived together for some months before the child's death at various addresses in Ashfield, Darlington and Mount Druitt. Both of them treated the child abominably. On 14 April 2000 there was a particularly nasty episode when the child sustained a spiral fracture to the left tibia. It was later ascertained that at about the same time there were fractures to the right humerus above the elbow, to the right seventh and eighth ribs, to the left scapula and clavicle, and a number of other abrasions, lesions and bruises on his head, chest and limbs. Nobody knows exactly who was responsible for these injuries, although it was common ground that it was either Mr Hill or Miss Eriksson.
3 Another major episode occurred four days later, on 18 April 2000, when Miss Eriksson left the child in Mr Hill's care for some forty-five minutes while she went to the nearby shops. On her return she inquired how Tristen was, only to receive the reply "I done something", and then added "I couldn't handle him crying. I threw him onto the corner of the lounge and he hit his head." This account is Miss Eriksson's, Mr Hill denying it. However, his Honour believed it, and to the requisite standard.
4 The child suffered another major trauma, on or before 23 April, but the evidence does not disclose exactly what it was or who caused it. His Honour did not, and could not find that Mr Hill was responsible for it. It was this trauma which killed the child.
5 No medical attention was sought for the child between 18 and 23 April, although such attention was badly needed.
6 It is plain beyond doubt that the child's death was caused by the absence of medical attention to a gravely ill little boy suffering from a multiplicity of severe injuries. Both Mr Hill and Miss Eriksson should have seen to the provision of that medical attention. They did not. On Miss Eriksson's evidence (which his Honour accepted) she did not do so because Mr Hill influenced her not to.
7 His Honour sentenced Mr Hill to a term of imprisonment for 8 years with a non-parole period of 6 years. Miss Eriksson, on the other hand, received a sentence of 3 years.
8 Mr Hill's application before this Court was directed basically at attacking his Honour's finding that Mr Hill exercised undue influence on Miss Eriksson preventing her from providing medical assistance for her child. However, this is what Miss Eriksson said, and his Honour, as a tribunal of fact, believed her. It is of no relevance that she was a bad mother, that she had treated the child abominably, or that she had lied about the matter again and again. His Honour believed the version that she recited in the witness box.
9 It was also submitted that by a proper application of the principles of parity and proportionality, considering Miss Eriksson's sentence, Mr Hill's sentence should be lighter. But this submission may be easily laid to rest. She made an early plea of guilty, he did not. She offered assistance to the authorities, he did not. He influenced her not to go to the doctor, she did not influence him. And, in any event, her sentence was inappropriately light.
10 It is also submitted that his Honour did not give sufficient weight to Mr Hill's deprived background. This, too, admits of a simple answer: he clearly did.
11 Finally, it is said that the sentence is manifestly excessive. I do not think so. To put an end to a child's life is an offence of extraordinary gravity.
12 The application should be dismissed.
13 HULME J: On 27 April 2000 Tristen Michael Allen Lane, then 2 years old, died. There were at least three events which may have caused or contributed to his death.
14 The first was a major head injury he sustained on or about 18 April 2000. The second was the failure of Leanne Eriksson, his mother, and the Applicant who was living with her at the time, to obtain medical treatment of Tristen between 18 and 23 April 2000. The third was further trauma to Tristen's head which was suffered within hours prior to his admission to hospital on 23 April.
15 On 25 May 2000 the Applicant and Ms Eriksson were arrested and charged with Tristen's murder. In due course they were committed for trial. The evidence before this Court does not reveal all that occurred thereafter but Ms Eriksson appeared before the Supreme Court on 2 August 2001 when she entered a plea of guilty to manslaughter.
16 On 21 August 2001, Ms Eriksson participated in a recorded interview. In the course of the interview she made a variety of assertions implicating the Applicant in the head injury Tristen sustained on or about 18 April and exonerating herself from all of the injuries which led to Tristen's death. In prior interviews with police and in numerous statements to relatives and others, she seems to have maintained that Tristen had injured himself falling down some stairs or denied any knowledge of how Tristen might have been injured.
17 On 29 August 2001 evidence relevant to Ms Eriksson's sentence was given and on 7 September 2001 Ireland AJ sentenced Ms Eriksson to imprisonment for 3 years including a non-parole period of 18 months. The commencing date of these periods was 20 August 2000, a date which reflects pre-sentence custody. The head sentence reflected a discount of 17% for a plea and 33% for assistance to the authorities by way of implication of, and giving evidence against, the Applicant.
18 On 10 September 2001 the Applicant was arraigned on a charge of Tristen's murder. He pleaded guilty to manslaughter and the Crown indicated it was prepared to accept that plea in full satisfaction of the indictment. Over a number of days evidence on the question of sentence was taken and on 2 November 2001 Ireland AJ sentenced the Applicant to imprisonment for 8 years including a non-parole period of 6 years, both such periods dating from 25 May 2000.
19 During the sentencing proceedings, it was common ground between the Crown and the Applicant that he was guilty of criminal neglect in respect of a failure to obtain medical treatment. In issue, however, was whether, in addition, the Applicant had been guilty of one or more unlawful and dangerous acts which caused injury and contributed to Tristen's death, and specifically caused the 2 head injuries to which I have referred. On this topic Ireland AJ recorded that it was common ground that the injuries must have been occasioned by the deliberate act of either the Applicant or Ms Eriksson. Ireland AJ's findings included the following:-
37. The medical evidence is consistent with Tristen sustaining a major head injury on 18 April 2000. Doctor Langlois expressed the opinion that the constellation of injuries noted during autopsy would have been inflicted ten to fourteen days before the autopsy, that is to say between 14 and 18 April 2000. The fractures had formed callus, which indicated that they were more than seven days old. Professor Harper, Professor of Neuropathology, from the Royal Prince Alfred Hospital and the University of Sydney was of the same opinion.
38. I accept it to be common ground between the medical experts that Tristen sustained further trauma to the head shortly prior to his admission to hospital on 23 April 2000. It is not possible to say precisely when this final injury occurred.
39. Doctor Neil Langlois, forensic pathologist, is of the opinion that the time interval between trauma and leakage of the cerebro-spinal fluid, which was found upon admission, could range from almost instantaneous to a matter of hours.
40. Doctor Gregory Rowle, paediatric specialist, expressed the opinion that Tristen sustained a major injury on the day of his admission to hospital and that it was very likely that there was then a pre-existing brain injury.
41. Doctor Rowle expressed the opinion that the oedema or swelling of the brain, which caused the brain stem injury leading to cardiac arrest, developed in a matter of minutes and led to an arrest within the space of at most a few hours following the injury.
42. When asked to encapsulate the complete picture which he saw as a result of the whole of the history, that is to say the medical history relating to treatment, Professor Harper said this:
"I believe between ten and fourteen days before this child died something happened which stopped the oxygen to his brain at the same time he suffered a head injury, which resulted in him developing a subdural haematoma. The lack of oxygen has caused very, very severe brain damage to the extent that had nothing else happened to this child he would have been permanently debilitated and would have been virtually a vegetable. Certainly within four days (sic) of the death based mostly upon other evidence not my own evidence, it appears the child suffered a second injury which resulted in a fracture of the petrous temporal bone, which caused leakage of CSF, and given the leakage I saw within the older subdural haematoma it is also likely that resulted from his old head injury.
The combination of both of the brain damage or oedema, there is absolutely no space left within the skull for the brain to continue to function or for the blood to flow into the brain and that forced the rain down through the base of the skull, it is called the foramen magnum, and that is the site where our bodies meet and respiration is controlled, and if you compress that, everything stops and that is the final common pathway of this child's death."
43. I am satisfied that within a period, probably of the order of 4 hours, prior to admission to Royal Prince Alfred Hospital on 23 April 2000, Tristen sustained a second injury which caused the oedema which, in turn, resulted in cardiac arrest. This second injury may be considered to be the direct cause of death.
44. The events which took place on the morning of 23 April are to be gleaned from the evidence of Ms Eriksson and the offender.
45. I do not propose to review that evidence in detail. Suffice it to say that it does not, in my view, permit a finding beyond reasonable doubt that the offender inflicted a further injury on that occasion so as to constitute manslaughter by an unlawful and dangerous act.
46. The evidence makes plain, however, that over a period of some five days the offender failed to seek, for the child Tristen, medical assistance and treatment of which he was obviously in dire need, and further that he influenced Ms Eriksson to do likewise.
47. I am further satisfied on the criminal standard that on 18 April 2000 the offender so injured the child Tristen as to cause the multiple injuries, with the exception of the prior fracture to the tibia, as were disclosed on post-mortem examination, as well as the brain damage of such severity as to result in the degree of permanent debilitation described by Professor Harper as "virtually a vegetable". When taken together with the influence exercised by the offender to deter Ms Eriksson from seeking medical treatment, these are circumstances of the gravest aggravation."
20 In support of the appeal it was submitted that Ireland AJ erred in:-
(i) Sentencing the Applicant on the basis of an aggravating feature, being that on 18 April 2000 the Applicant so injured the child as to cause the multiple injuries and brain damage. The determination of this aggravating feature was not reasonably open on the evidence.
(ii) Sentencing the Applicant on the basis of an aggravating feature, being the influence exercised by the Applicant to deter Ms Eriksson the co-offender from seeking medical treatment for the child, Tristen. The determination of this aggravating feature was not reasonably open on the evidence.
(iii) Following upon the above errors, there was consequent error in not applying the principles of parity and proportionality so as to achieve a proper relationship with the sentence imposed upon the co-offender.
(iv) That his Honour was in error in giving insufficient weight to the circumstance of the Applicant's deprived background social, educational and intellectual background in determining issues of moral culpability and deterrence.
(v) His Honour's determination of the appropriate sentence was manifestly excessive in the circumstances.
21 The evidence of the "aggravating features" was primarily that of Ms Eriksson. In substance, the first two of the submissions boil down to the proposition that his Honour should not, reasonably, have been satisfied to the requisite standard by her evidence. Appearing for the Applicant Mr Craigie acknowledged that the Applicant faced a high hurdle. For his Honour had also said:-
"19. What is said by (Leanne Eriksson's half sisters, Shonna and Julia Parker, their close friend Kylie Quinn and other close friends Susie Tavares and Dominic Natalie) and by other persons, who have made statements to investigating police, satisfies me to the relevant degree that, following commencement of the relationship between Leanne Eriksson and the offender, Tristen was subjected to rough handling and physical abuse by the offender which was evident in bruising and abrasions observed by Shonna and Julie Parker and in particular Susie Tavares and Kylie Quinn.
23. On about Friday 14 April 2000 when residing with the offender's sister at Golden Grove Street, an incident occurred in which Tristen suffered a spiral fracture of the left tibia. The offender has given inconsistent versions of events associated with this incident.
32. The credibility of Leanne Eriksson has been the subject of careful analysis in helpful written and oral submissions by Mr Zahra. It is apparent that at a time when she was in love with the offender, and desired to continue and develop her relationship with him, that she gave to hospital staff and authorities versions of events which sought to exculpate the offender.
33. I am satisfied that the offender was the dominant partner in their relationship and that in failing to seek medical attention for Tristen, Ms Eriksson was largely influenced by the offender and the dire consequences he encouraged her to believe would flow from any investigation by authorities of the origin of the child's injuries.
34. I am nevertheless satisfied that in making her statement of 21 August 2001, and in giving her evidence before me on 12 and 13 September 2001, Ms Eriksson was endeavouring to tell the truth to the best of her ability and recollection.
35. I do not accept the offender as a witness of truth. His denial of any maltreatment of Tristen and his denial of a close and intimate relationship with Leanne Eriksson are both contradicted by the unchallenged statements of independent witnesses to whom I have referred with regard to his conduct and by the letters which he wrote to Ms Eriksson as to the depth of his feelings and affection for her.
22 However, just as the verdict of a jury who has seen and heard the witnesses is liable to be overturned in this Court, so may be the findings of a sentencing judge. Thus, as did the submissions on the part of the Appellant, I find it necessary to go to the evidence in some detail.
23 An appropriate starting point in an examination of whether his Honour was entitled to accept Ms Eriksson as a witness of truth is the medical and pathology evidence. It is at least arguable that it is impossible to reconcile Ms Eriksson's own evidence with this.
24 The first event of note in this area is that Tristen was taken to hospital on 15 April 2000 where he was seen to have a broken tibia in his left leg. The tenor of the evidence of the doctor and nurses who examined him on that occasion was - and there is no reason to doubt their evidence - that at that time he had no other bone injuries.
25 The next time he was seen by anyone with medical or quasi-medical knowledge was when ambulance officers arrived at the unit occupied by the Appellant, Ms Eriksson and Tristen at about 10.55 am on Sunday 23 April 2000. They observed that Tristen was then without pulse. One of the doctor's reports indicates that he remained in this state at least from 10.56 to 11.18 am.
26 Tristen was taken to Royal Prince Alfred Hospital and then moved to the Westmead Childrens' Hospital where for some days he was placed on a life support system until 27 April. Shortly after that was switched off, he died. Post mortem examination showed that the injuries at that time, referred to by his Honour at paragraph 37 included, in addition to many bruises, fractures of the 7th and 8th ribs on the right side, a fracture of the right humerus, fractures of the left scapula and left clavicle, and of the left tibia. All of these bone injuries showed signs of natural repair.
27 One of the witnesses was Dr Rowell, a consultant paediatric physician who examined Tristen on his admission to Royal Prince Alfred Hospital. He observed multiple superficial bruises and abrasions on the head, neck and chest and bruises along both sides of the jaw. The bruises on the front of the chest were many and small. There was also a superficial abrasion on the right upper eyelid and superficial lacerations and bruises at the superior and inferior attachments of the right ear, caused probably a couple of days previously. The bruises were of various ages, some recent. Reddening of the left ear was consistent with pulling or a blow.
28 There was bruising and swelling in the left supraclavicular fossa. The symptoms were compatible with the fracture of the left clavicle having been there for some days.
29 There was clear fluid found in the left ear consistent with CSF leakage, this leakage suggesting a fractured base of the skull. The radiologist reported opacification of the left mastoid air cells consistent with the clinical diagnosis of a fractured base of the skull. Such a leakage normally leads to meningitis within a matter of hours to days or a week or two.
30 A CT brain scan showed diffuse cerebral oedema involving most of the left hemisphere of the brain. In his original report Dr Rowell's opinion was that on the morning of 23 April Tristen suffered a severe diffuse brain injury producing massive cerebral oedema and also suffered a fractured base of the skull. The cerebral oedema provoked the final swelling of the brain. In Dr Rowell's view, this in turn compromised brain stem function and caused cardiac arrest.
31 Dr Rowell said it was this injury which caused death and it occurred within at most a few hours of Tristen's presentation at hospital. The injury could have resulted from a blow or shaking, or the oedema could have been worsened by a period of deprivation of oxygen to the brain. The latter is least likely cause: A blow to the head is the most likely. The CT scan excluded further haemorrhaging as causative of Tristen's death. An absence of recent retinal haemorrhages argued against shaking.
32 Asked to assume that a later CT scan showed quite an increase in the cerebral oedema, Dr Rowell said that that would indicate that the injury occurred immediately (by which I take him to mean very shortly) before presentation at the hospital.
33 In evidence Dr Rowell was asked to assume also that Tristen had suffered an injury as a result of striking his head on 18 April. He said that he could not exclude the possibility of two injuries but he maintained that it was on Sunday 23 April that Tristen sustained the major injury that caused the condition Dr Rowell saw in the hospital that day. There was insufficient evidence to indicate that the subdural haemorrhage caused the oedema and compromise brain functions and subsequent cardiac arrest and indeed evidence to the contrary. However, the previous injury could have sped up the time between the traumatic event on 23 April and the oedema it caused. In general an injury sufficient to cause cerebral oedema which was sufficient to cause compromise of brain stem function and cardiac arrest would have to be substantial although the earlier injury may have meant that lesser force than usual was required.
34 Dr Jacobe was a part-time staff specialist in paediatric intensive care. He had been involved in Tristen's care from the afternoon of 23 April. Apart from injuries which were described by others, Dr Jacobe said there were multiple bruises apparently of different ages on Tristen's anterior and posterior trunk. Dr Jacobe opined that it was likely that in the hours prior to Tristen's presentation he suffered a severe cerebral injury.
35 On 24 April Dr Wilkins, a senior staff specialist in paediatric intensive care took over from Dr Jacobe and examined Tristen. Dr Wilkins observed, inter alia, a bruise and abrasions on the back of Tristen's head, a bruise on his back and one at the base of his penis, bruises on his abdomen and chest and a distended, tense abdomen. He referred to X-rays showing fractures of the left clavicle, the right eighth rib and the bottom end of the humerus. A CT scan of the head showed diffuse swelling of the brain, more marked on the left, a small left sided sub-dural haemorrhage and some small contusions within the brain.
36 Dr Wilkins opined that the combination of severe brain injury, injury to the pancreas and multiple fractures could not have been sustained in a single accident and none of the fractures were of the sort that could be ordinarily sustained in trivial accidents. He said, "The child died as a direct result of the traumatic injury to his brain. … a traumatic brain injury of this severity would not be followed by any lucid interval which would delay his presentation to hospital. It is therefore my opinion that the fatal injury was sustained not more than a few hours before the ambulance was called. The appearance of most of the injuries is consistent with this."
37 Dr Michael Ryan is a consultant paediatrician whose CV indicates considerable study of child abuse and neglect. He examined Tristen on the morning of 24 April. He referred to bruises "over the front of the chest, on the face, and abdomen, which I confirmed to be adult fingermarks." In his report of 28 April Dr Ryan set out the findings of a CT scan of Tristen's head and the conclusion of a "probable left subdural haematoma, with more recent haemorrhage against the falx, and significant cerebral oedema causing effacement of the cerebral sulci, presumed base of skull fracture." He recorded that the observation of clear fluid from Tristen's left ear further supported the suggested basal skull fracture.
38 Dr Ryan said he observed multiple adult "fingermark" bruises on Tristen's face, chest and back and a laceration to the tip of Tristen's left ear which he believed was of recent origin. He said the CT scan taken at RPAH demonstrated "an acute interfalcine subdural haematoma (2-3 days old)" and a chest x-ray taken at RPAH showed a 2-3 day old fracture of the left clavicle. Dr Ryan suggested a repeat CT scan of the head be taken and this showed increased cerebral oedema and hypoxic brain injury.
39 Dr Ryan records the findings of a skeletal survey. He said that ophthalmological consultation did not reveal evidence of retinal haemorrhages. Dr Ryan quoted from a number of publications included in the quotes were that a fracture of the distal third of the clavicle is likely to be the result of shaking, that in young children rib fractures are rarely if ever the result of minor accidental trauma, have not been found after cardiopulmonary resuscitation and most are thought to result from violent shaking and that "while retinal haemorrhages are commonly associated with inflicted head trauma in 15 to 20% of cases, retinal haemorrhages will not be documented.
40 Dr Steinberg is a radiologist at the Westmead Children's Hospital. He referred to many of the fractures to which I have referred. He attributed the constellation of brain injury seen to shaking and the totality of injuries to systematic beating and abuse.
41 Professor Harper is a surgical pathologist. He reviewed sections of Tristen's brain. He concluded that a subdural haematoma on the left side of the brain had occurred about 10 to 14 days prior to death and there appeared also to be recent bleeding within the haematoma suggesting recurrent haemorrhage. Such an event is a frequent and well known phenomenon not necessarily associated with a second head injury. Professor Harper said that the most severe brain damage related to a lack of oxygen or glucose to the brain and changes caused by this also appeared to be 10 to 14 days old. He saw some features which "could be related to the diffuse hypoxic (lack of oxygen) damage or could be due to a head injury with a rotational component, the latter being more likely.
42 In evidence before Ireland AJ, Professor Harper said that the diagnosis to which I have referred was based solely on an examination of the brain and photographs together with some preliminary information that the victim could have been shaken. At the time of giving evidence Professor Harper had however seen information from other doctors and he said that this helped to give a more complete picture. He adhered to the view that Tristen had had brain damage caused by lack of oxygen and swelling to the brain and that both had occurred between 10 and 14 days before his death and said that the only issue between him and Dr Rowell was that Professor Harper saw the subdural haematoma and the hypoxic encephalitis as more significant. Professor Harper accepted what was said to be the opinions of Dr Ryan and Dr Rowell that the difference in the two CT scans indicated a significant trauma within hours of presentation at the hospital. He gave the following evidence:-
"Q. The particular trauma of the morning within hours of presentation is in fact the trauma that caused death?