R v Byrne

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL Dunford J Monday, 17 December 2001 70043/01 R v Suellen Lynn BYRNE REMARKS ON SENTENCE 1 His Honour: On her arraignment in Grafton on 26 November 2001 the prisoner pleaded not guilty to murder but guilty to the manslaughter of her five year old son, Dylan Byrne. The Crown accepted the plea in full satisfaction of the indictment and I was informed from the Bar table that the plea was tendered on the basis of criminal negligence but accepted by the Crown on the basis of death resulting from unlawful and dangerous acts. Evidence was taken in Grafton on 27 and 28 November and adjourned to Sydney for the taking of medical evidence. Upon resumption in Sydney on 4 December I was informed that it was now conceded that the death resulted from unlawful and dangerous acts on the part of the prisoner. 2 The child was brought to the emergency ward at Grafton Base Hospital at about 9.20 am on Wednesday, 5 July 2000 in a comatose state. His skin colour was abnormal and mottled with a cyanosed bluish red appearance, he was not breathing or circulating blood adequately, and his body temperature was 28.9 degrees Celsius. There was also a significant area of red discolouration on his left leg and the appearance of bruising across the front of his head. Despite their best endeavours, the medical staff was unable to revive him and he was pronounced dead at 10.55 am. Meanwhile the hospital staff discovered a number of other bruises on his arms, legs and trunk and, when they turned him over after ceasing their efforts to revive him, they found a large excoriated area on his back, which looked like a burn. The marks and injuries appear on the photos attached to the statement of Det Sen Cons McFarlane and also in Exhibits 1 and 4. 3 The post-mortem examination was carried out by Dr Botterill whose findings included an extensive severe scald of the back in a pattern consistent with immersion in hot water, probable scalds over the left arm and leg, many bruises of varying age over the head, trunk, arms and legs, grazes over the right cheek, right knee, fine red bruises over the lining of the left eye, a fingernail-like mark over the right side of the neck, excess fluid in the lungs, probable inhaled blood in the lungs, small shallow ulcers of the lining of the stomach, blood in the bowel and next to the pancreas and a swollen brain. There was also an infection of the lungs, most probably related to a recent viral infection. 4 He identified the cause of death as the combined effect of multiple injuries (scald on the back and extensive bruising) and bronchiolitis (a viral infection of the smaller windpipes in the peripheral areas of the lungs). He regarded the bronchiolitis as less significant than the injuries. Dr Ryan, a consultant paediatrician, who also attended the post-mortem examination, said in evidence that death from bronchiolitis in a child the age of Dylan would be extremely rare, and I am satisfied that such condition played only a minimal, if any, part in the death of this child. The substantial issue debated during the proceedings on sentence related to the nature of the burn on the victim's back. 5 The prisoner gave a number of different versions as to how the deceased met his injuries. Initially she said she had put him in a bath which was "sort of warm", whilst she explained the red area on his legs and the bruising across his head by saying that he had fallen off a swing the previous day, and later she said that the previous evening he had lain in front of the fire and got too close to it, so that his back started getting red, the next morning he was shaking so she put him in a warm bath, left him for 10 minutes, came back and he was unconscious. 6 Later on the same day, 5 July, she took part in two video recorded interviews, in the latter of which she admitted she had put the bruises on him by hitting him all over the body and head with a plastic spoon (which later became Ex. H). She said she had just "lost it" and continually hit him while he was in the shower for about 20 minutes, that she had hit him so much on the legs that he could not walk and could not get out of the shower himself, and when she took him out he was crying but not talking, his eyes were open and he was breathing. She said she placed him down in front of the fire and wrapped a cold wet blanket around him, but his back got red so she moved him back onto a small lounge divan and left him there. 7 She said she realised he needed medical treatment, but did not take him to the hospital because she was scared the authorities would "lock her up" and take her daughter, Melissa, then aged 15 months. She later put a bandage round his back and some cream on it, but otherwise left him all night on the lounge naked and uncovered. She said that on the Wednesday morning he was complaining that he was cold and wanted to be warmed up, so she ran him a luke warm bath, left him in it for about 10 minutes whilst she changed her daughter's nappy, and when she went back he was not moving and there was blood coming out of his nose. Attempts by Elwyn Morris, an adult male living in the house with her at the time, to revive him by mouth to mouth resuscitation failed, so they took him to the hospital. 8 She requested to see the police again on 27 July when she told them a different story in which she attempted to shift a large part of the blame onto Elwyn Morris, but this version may be disregarded because it obviously followed a falling out between the prisoner and Elwyn Morris: see in particular Q & A 111. 9 In a further interview with police on 13 August 2000, when her attention was drawn (Q 125) to the medical opinion by then received that the burn on the back was not from an open fire but from scalding with a hot liquid, probably water, the prisoner said that Elwyn must have done it, that she would not scald her own son, and he must have done it the night before or when she was out at the shops on the Wednesday morning. She agreed she ran a bath for Dylan on the Wednesday morning, but insisted it was a "warm", not "hot", bath. 10 At some stage, presumably before she made the statement of 27 July, she wrote an undated letter to Elwyn Morris telling him what she had told the police, apparently with a view to him telling the same story, and excluding Elwyn from any involvement or responsibility. It is substantially consistent with the version she gave in the second recorded interview of 5 July. The letter concludes "I know I told a few lies elwyn but it's only cause I love you, elwyn … we know what really happen but there not going to believe us elwyn." (sic) 11 She was seen by Dr Robert Delaforce, forensic psychiatrist on 20 November 2001 for the purpose of him providing a report. In that consultation she gave a version which, although differing in some details, was largely consistent with that given in her second recorded interview of 5 July. She said that after Dylan was moved out of the shower he never talked and, although his eyes were open he did not seem to know what was going on. He had nothing to eat or drink that night. She wanted to take him to the hospital, but Morris said to leave it until the next morning. 12 The Crown called Elwyn Morris on the sentencing hearing, and although he was in many respects an unsatisfactory and unconvincing witness, his version of events on the Tuesday was also substantially the same as that given by the prisoner in her second recorded interview of 5 July 2000 and in her consultation with Dr Delaforce. 13 As was her right, the prisoner gave no evidence on sentencing and the ascertainment of what actually happened has not been without difficulty, but I am satisfied that the versions given in the second recorded interview of 5 July 2000, and in the consultation with Dr Delaforce in November 2001, corroborated as they are to a degree by the evidence of Elwyn Morris and being consistent with the injuries and bruises (except the burn on the back) are substantially true, and can be relied on to establish what happened up until about 7 pm on the evening of Tuesday, 4 July. However, I do not accept that the burn to the back was a radiant burn sustained from lying too close to the open fire, but am satisfied to the criminal standard that it was a scald burn occasioned by the child being immersed on his back in a bath containing very hot water. 14 All the medical witnesses (including Dr Maitz, called on behalf of the prisoner) expressed a preference for it being an immersion caused scald having regard particularly to the clear definition of the extent of the burn mark, although a number of them were prepared to concede, generally with reluctance and then only to a limited degree, the possibility of it being a radiant burn. 15 Dr Martin would not concede the "practical possibility" of the burn being a radiant burn and was firmly of the view, not only that it was a scalding burn but also that the lighter patch indicated an area of more extensive burning rather than of sparing, and this provided further support for his view that it was an immersion burn consistent with the child being placed in a bath of hot water. 16 They all agreed that for the child to suffer the radiant burn in front of the fire as claimed, he would need to be unconscious or virtually so because as a five year old he would have moved away as it got hot. Dr Martin drew attention to the fact that to cause the burn the heat would need to be in the range of 43 to 45 degrees Celsius. 17 Although he tended to be somewhat dogmatic in his demeanour, I found the evidence of Dr Martin the most convincing. He has had the most extensive experience of the doctors giving evidence in dealing with burns injuries to children, and he described the clearly defined borders of the injury as a "classic case of an immersion scalding injury". I also found his explanation for the lighter coloured area in the middle of the burn area as an area of deeper more acute burn, rather than as an area of sparing, convincing. 18 I accept the admissions made by the prisoner, corroborated by the sworn evidence of Mr Morris, that on the afternoon of Tuesday, 4 July the prisoner struck the child repeatedly with the plastic spoon whilst he was standing under a cold shower and struck him so hard that on at least three occasions he fell to the ground, and then was left in the bathroom, naked, for some hours until about 7 pm and that he was then unable to walk and was either unconscious, sub-conscious or at least drowsy. I am also satisfied that by that stage, his body was very cold and he was probably suffering hypothermia. 19 I am further satisfied that at that stage, realising he was cold and not responding, instead of taking him to the hospital for proper treatment she then or later, in an effort to warm him up, placed him in an overheated bath, thereby occasioning the substantial burn to his back. Having burnt him in this way, she still refrained from taking him to the hospital for fear of the consequences for herself; and did not do so until after the child was dead. He must have been still alive when the burns were sustained, although possibly unconscious; but having regard to his body temperature on arrival at the hospital, he had by then been dead for some hours. 20 The many bruises found on the child's body at post-mortem were described as being "of varying age", and I am satisfied that the injuries which contributed to his death were not all inflicted the previous day but over a number of days, and that they were all inflicted by the prisoner, as it seems Elwyn Morris did not interest himself in the discipline or care of the children, and there is no evidence that he was responsible for any beatings of Dylan. 21 The vicious beating of the child and then leaving him in the cold bathroom naked in the middle of winter for some hours constituted unlawful and dangerous acts which contributed to his death, his immersion in overheated water, and the failure to seek medical help after the assault when he was removed from the bathroom cold and unable to walk, and again after he sustained the burn each constituted acts of criminal negligence, although it appears that the immersion in overheated water was an attempt to revive the child and not done with intent to cause further harm. 22 The injuries inflicted on this poor unfortunate child were brutal and extensive and must have caused him considerable pain and distress in the last days and hours of his life; and what aggravates the criminality involved is that these injuries came from his own mother, the person from whom above all he was entitled to expect care, nurture, love and protection. 23 The plaintiff was born on 17 February 1968 and is now aged 33 years. She was the youngest of ten children born to parents who were, and remain, married. She grew up in the western suburbs of Sydney and later on the Central Coast. 24 She claims to have been molested when young and on occasions suffered bruising when her mother disciplined her with a spoon. One brother has been in prison although there is no evidence of the nature of his offence, another is schizophrenic and a sister has had in-patient psychiatric treatment. 25 She attended school until part way through Year 9, leaving with limited literacy skills, although these have apparently improved in the meantime, and she has been unemployed for most of her time since leaving school. At the age of 16 she was raped by three males who were subsequently convicted and imprisoned, and she was also injured in a motor vehicle accident. She received compensation both for the rape and the motor vehicle accident, but the money was dissipated. 26 She has never been married or engaged, but has had a number of de facto relationships, the first commencing when she was about 18 or 19 years old with Elwyn Morris with whom she went to Lightning Ridge. Different accounts are given of this relationship which was apparently intermittent over a number of years. She claims she was subjected to physical and sexual abuse, all of which is denied by Morris, who claims that she frequently left him for other men, but he repeatedly took her back. The relationship broke down after about 7 or 8 years. 27 She then returned to the Central Coast where she had a relationship with Glen Page who was the father of the children, but also a heavy drug user who had suffered permanent brain damage as a result of a motor vehicle accident when a child. This appears to have also been an abusive relationship to which his parents were opposed. 28 During breaks in her relationship with Page she had relationships with two other men; one drank to excess and the other was subsequently imprisoned for the sexual assault of young females. Then Glen Page reappeared temporarily, with the result that the prisoner became pregnant with Melissa, whereupon Page left and he has played no further part in her life or that of either of his children. 29 In early 2000 she moved to Urunga where her brother was living, but after she sent Morris a card for his birthday he reappeared on the scene and invited her and the children up to Guranang near Grafton to stay at his mother's place, which she did, and he then moved her back to Urunga. Following a disagreement with her brother the prisoner went to stay with a friend, Lesley Howard, at Coffs Harbour for about a month where Morris visited her a number of times, and then about two weeks before Dylan's death he helped her move into rented accommodation she had found at Mary Street, Grafton where he appears to have spent most of his time, although he claimed he was still living with his mother and step father in Guranang and only visiting the prisoner at Mary Street. The prisoner appears to have regarded this as the renewal of a romantic relationship, but I am satisfied that Morris did not see it in that light, but merely as a convenient (and probably transient) arrangement for sexual intercourse. 30 Over the last 2 to 3 years Dylan had become a difficult child to manage and the prisoner had attempted to discipline him by hitting him with the plastic spoon, yelling at him and constantly telling him he was a naughty boy, all of which seems to have been counter productive, and only compounded the problem. In addition, whilst at Coffs Harbour she felt that Dylan preferred Ms Howard to her, and that she was inadequate as a mother. 31 About a week before Dylan's death, Morris, the prisoner and Ms Howard had together gone to the Department of Community Services office in Grafton to seek help for the prisoner in dealing with Dylan, but she had declined to make an appointment. 32 Over a number of years she had drunk alcohol to excess and also used cannabis and amphetamines, but during her time in Grafton she was not drinking alcohol or using amphetamines, although she was continuing to use cannabis. 33 Dr Delaforce diagnosed her as suffering at the time from mild social phobia, and a number of personality disorders namely, avoidant personality disorder, dependent personality disorder and borderline personality disorder. He also found that since, and as a result of, Dylan's death she has suffered a major depressive disorder and a post traumatic stress disorder. 34 Her IQ was assessed by Ms Barrier, a clinical psychologist, at a score of 75 which would place her in the borderline intellectual functioning range, although Dr Delaforce noted that her presentation during the audio tape recording of the interviews with police and her presentation to him during his consultation suggested better intellectual functioning. 35 I accept Dr Delaforce's diagnosis and also his opinion that she will require ongoing treatment for a lengthy period in the future. This suggests the need for a longer, rather than a shorter, period of supervision on her release from full time custody, and constitutes special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 36 She has pleaded guilty to manslaughter at what I am satisfied was the earliest time at which such option was practically available, although that was only a week before the trial. The plea of guilty recognises an acknowledgment of guilt and demonstrates remorse which she has previously expressed to Dr Delaforce, although in view of her admissions to police, I consider it was a strong Crown case. 37 The plea also has a utilitarian value in saving the cost and expense of a trial, in this case expected to last 2 to 3 weeks. However, the evidence on sentence extended over 4 days, although they were not full days, and involved the calling of one lay and six medical witnesses. The plea was initially entered on the basis only of criminal negligence in not taking the child to the hospital earlier, and it was only after Mr Morris' evidence had been completed that her counsel informed me (T 97) that unlawful and dangerous act (the assault under the shower in the bathroom) was conceded, and there was still no admission which I could accept concerning the burn to his back. 38 The prisoner is not to be penalised for exercising her right to silence, but the utilitarian value of the plea was not as great as it could have been, and therefore the reduction in sentence is not as great as it would have been if she had at some stage told the Court how the child sustained the immersion burn which I am satisfied he suffered. In the circumstances I have allowed a reduction in the sentence on account of her plea of 15%. 39 Whilst the offence of manslaughter is always serious as it involves the unlawful killing of another human being, the Court regards the killing of children as particularly serious, especially when such killings are at the hands of a parent or family member. 40 In a number of cases the Courts have stressed the need for both general and personal deterrence in such cases, and consistently heavy sentences have been imposed: Vaughan (1991) 56 A Crim R 355, Ditfort (NSWCCA 17 March 1992) and Howard [2001] NSWCCA 309. 41 I have had regard to the sentences imposed in the abovementioned cases and also to those imposed in Dawney (Barr J - 15 September 1999), Bilton [2000] NSWSC 1113, Recalde [2000] NSWSC 1247, Murdoch (CCA 10 Dec 1998), Wilkinson [1999] CCA 248, Hill [2001] NSWSC 978, and Woodland [2001] NSWSC 416 as providing a broad guide to the range of sentences imposed in such cases, bearing in mind that the circumstances of each offence and the subjective features of each offender are different. 42 In some of the cases referred to the offender was the de facto spouse of the victim's parent, as opposed to the mother herself as in this case, in most of them the offender had pleaded guilty, some offenders had personality disorders of various kinds, and in many, if not most, cases there was a need to serve the sentence on protection. In this case there is now evidence that the prisoner was held in protective and segregated custody from 6 July 2000 until 3 December 2001, but is now being held in the MSU - general population section. The sentence will be backdated to take account of her pre-sentence custody.

43 Suellen Lynn Byrne for the manslaughter of Dylan Byrne I sentence you to imprisonment for 8½ years such sentence to be deemed to have commenced on 5 July 2000 and expire on 4 January 2009. I fix a non-parole period of 6 years. The earliest date on which you will be eligible for release on parole will be 4 July 2006. -------------

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