R v Cassidy [2008] ACTSC 13

* That on the 28th day of November 2005 at Canberra ... [he] unlawfully killed Trinaty Monique Howarth; and

* That on the 25th day of November 2005 at Canberra [he] assaulted Alicia Wilson.

2. The first count, as the agreed Statement of Facts reveals, relates to events occurring on 26 November 2005. Trinaty's mother Alicia Wilson, and the offender were in a domestic relationship. The offender became angry with Trinaty, whose date of birth was 12 March 2001, because she wet her pants. He also accused her of telling lies about an incident involving her maternal grandfather.

3. The offender at this point threatened Trinaty saying "I'm gonna belt you with the walking stick". They were then in the offender's vehicle. He accessed the boot from inside it, retrieved a heavy metal saucepan and hit Trinaty repeatedly on the head with it, yelling abuse at her. Ms Wilson tried, though unsuccessfully, to stop him. He then retrieved the walking stick and beat Trinaty about the arms, legs and stomach. She was clearly hurt by the blows, making groaning noises and exclaiming "ouch".

4. They then obtained some food. The offender again became angry with Trinaty because she was not eating quickly enough. He grabbed her by the ears and lifted her from the back seat of the car.

5. They drove then to Holder, to find a place to sleep for the night. When they stopped, it became apparent that Trinaty was in a serious condition. She was, the offender noticed, "burning up". He gave her water. Ms Wilson noticed the right side of Trinaty's head was "spongy and soft".

6. They went to the offender's brother's house and gave Trinaty a cold shower. It seemed to help, lowering her temperature and improving her lucidity. However, when she was taken from the shower and lain down, she began vomiting. Ms Wilson then proposed that they take her to the hospital.

7. The offender did not demur from this proposal. Indeed, on the way, as Trinaty's condition worsened, he instructed Ms Wilson on giving mouth to mouth resuscitation.

8. Unfortunately, though the hospital staff did all they could, Trinaty died at 9.55 am on 28 November 2005. The cause of death was gross cerebral oedema and hypoxia. The beating the child suffered at the hands of the offender lead to global hypoxaemia and multi-system organ failure.

9. The offender, after dropping Trinaty and Ms Wilson at the hospital fled. He was found about 6.00 am on 27 November 2005 by police. He was taken to City watch house where he was interviewed.

10. He made full admissions as to what he had done.

11. During that interview Mr Cassidy made the following admissions:

* He hit Trinaty on the top of the head with a saucepan,

* He pulled out a stick and threatened her with it, he smacked her on the knees with the stick and bruised her,

* He couldn't control himself,

* He also used his hands to hit her,

* He was in the back seat when he got the pot, Alicia was in the front seat,

* Trinaty was in the back seat,

* He did not think he was hitting her `that hard' with the cooking pot which was about 15 cm across,

* When he hit her on the head, he was not sure what might happen, it was not `a real good thing' and, he did not know what he was thinking at the time,

* Trinaty was fine after he hit her with the pot, they were talking to her and she was eating,

* When he hit Trinaty on top of the head, she was fine, she had no lack of energy,

* What happened was `disgusting',

* If he had been `relaxed in the head' it wouldn't have happened in the first place,

* Trinaty had lied, that was why she got a smack, that was what started it, they both yelled at Trinaty and Alicia hit her on the `arse',

* It was about 3 - 4 hours after he hit her on the head that they went to the hospital, Trinaty seemed like she was `cooking',

* He struck her about 5 times on the head while he was saying `don't fucking lie',

* On a scale of 1 - 10 it was a 6 as far as his anger was concerned,

* He probably increased the strength of the hits each time,

* He did not know why he used the saucepan, he did not honestly think the saucepan would hurt as much as the hand, he was not aiming to hurt her, he wanted her to learn not to lie,

* He regrets everything he had done, he is sorry for what he had done.

12. Between about 30 November 2005 and early December 2005 Mr Cassidy made a number of admissions to Ms Faye Boyce and Mr Brett Mayo, who were custodial officers at the Belconnen Remand Centre, including:

* He had hit the little girl first,

* He had hit the little girl over the head with a pot, the little girl had been pinching smokes and they had caught her smoking,

* He felt he should die for what he had done,

* He had brain snapped or something and that he wanted to be punished.

13. During the police interview on 27 November 2005, the offender admitted assaulting Ms Wilson during an argument in the car on 25 November 2005 by back handing her across the face striking her in the area of her right eye.

14. The offender has been in custody since 27 November 2005.

15. Both Mr Archer, for the offender, and Mr Doig for the Crown, drew my attention to numerous authorities. There is little controversy about the seriousness of this offence. As Crispin J said in R v Singh (1999) ACTSC 66 (24 June 1999):

[18] The starting point must be an acknowledgement of the objective gravity of the offence and the important role which the law must play in protecting human life. The sentencing process is not concerned solely with the subjective circumstances of the offender nor the reasons for the offence.

16. I take guidance from the observations of Spigelman CJ in R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520; in the New South Wales Court of Criminal Appeal. The offender had beaten a seven month old baby severely. There were crush injuries to the toes caused by a clamp. Death was caused by inhalation of vomit.

17. It was to be borne in mind, as in the present case, that such an offender would serve his sentence under strict protection.

18. It was also noted by his Honour, at 528, that some instances of manslaughter may be more serious than some instances of murder:

26 The elements of murder include an intention to kill or to inflict grievous bodily harm. Such an intention is, of course, of the greatest significance in the sentencing exercise. Where it is present and a charge of murder is made out, the appropriate sentence will generally be higher than for other forms of homicide. Plainly, other circumstances being equal, the moral culpability of the offender is significantly higher where one person causes the death of another in circumstances where an intention to do so exists. Nevertheless, the multifarious situations in which homicide can occur and the wide range of other considerations that must be taken into account in the exercise of the sentencing discretion are such that it is not correct to conclude that it is only in the "clearest and most exceptional circumstances" that any conviction for manslaughter could lead to a higher sentence than any conviction for murder.

27 Many charges of manslaughter are accompanied by the requisite intent, but the conviction is reduced to manslaughter by reason of provocation or diminished responsibility. In some such cases the extent of provocation or the degree to which responsibility was diminished is not such as to significantly reduce the appropriate penalty below the maximum permissible for manslaughter. On the other hand there are situations in which the charge of murder may be accompanied by circumstances which reduce the objective gravity of the offence, e.g. a case of euthanasia or a suicide pact. Such matters can result in an appropriate sentence being well below the maximum permissible for manslaughter.

19. It is particularly apt to bear that in mind where, in this Territory, manslaughter may include an intent to do grievous bodily harm or the reckless infliction of grievous bodily harm which in New South Wales would suffice for murder.

20. Referring to a category of situations similar to the present, his Honour stated (at 530):

42 Plainly a violent attack, albeit not one accompanied by an intention to kill or inflict grievous bodily harm, by a person in a position of trust and responsibility upon a defenceless young child, is a circumstance of considerable aggravation. In this sense only can the offence of manslaughter in such cases be regarded as some form of separate category. It is a circumstance of such significance that it is entitled to substantial weight in the exercise of the sentencing discretion. The sense of outrage in the community about such a case is so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion.

22. Also relevant, of course, is the nature of the acts constituting the offence. They may cover a wide range. At 531, his Honour said:

43 In the case of manslaughter, as I noted above, the acts constituting the offence and the circumstances of the offender at the time of the offence, may vary over a very wide range of objective gravity. The actual physical assault leading to death can range from comparatively minor force to a sustained beating over a prolonged period of time, incorporating elements of gratuitous cruelty. The personal culpability of the offender may vary from a carer who acts out of despair or in circumstances bordering on accident, to the vicious acts of a sadist.

23. Previous sentences ranging up to 16 years, are of course, only a guide. Further, some cases of manslaughter in this Territory might well be murder in New South Wales, though, of course, the maximum penalty, at 25 years for manslaughter in that State is a little higher than is available in this Territory at 20 years.

24. I pause to note the various cases summarised by his Honour, at 533-534, where, various situations generally within this category of offences attracted head sentences between 6 and 15 years. The last being a man who killed the three year old son of his de facto by a blow to the abdomen and placing him in a cold shower.

25. Objectively, this offender's conduct places his crime into a category of particular seriousness. It was brutal, cowardly and merciless. The circumstances cry out for the most condign punishment that can be imposed in the circumstances. The Victim Impact Statements, read in Court, amply and eloquently testify to the horror of the conduct of this offender. I pause to say that I appreciate that no sentence I can impose will ever bring the child back, nor is any sentence I impose to be regarded as in some way a measure of the life of the child who was killed.

26. I ask what mitigates the offender's crimes, if anything.

27. Certainly, once his rage had passed, he cooperated in seeking treatment for Trinaty. He gave positive assistance. But so he should have. I do not consider this offender to be a depraved animal. He showed, albeit belatedly, human feelings.

28. That is also true of his remorse. Of course he feels remorse and so he should. He beat a small and helpless child to death simply because Trinaty gave some small cause for rebuke.

29. He did, the day after, admit to his conduct. He did not spare himself appropriate condemnation as may be seen from the Statement of Facts I have quoted above.

30. Is there some explanation which might lessen this offender's moral culpability for his actions? This is a different question from his remorse for so acting. Remorse is a step towards atonement but there is little he can now do to ameliorate the harm he has caused. Remorse is but a small step.

31. Mr Archer invites me to consider the evidence of the offender's background and mental state. In some cases, though not excusing conduct, this may explain it and lessen moral culpability though it might also add to the fear that the offender is an ongoing danger to members of society.

32. Dr Daniel Bonner, psychiatrist, has seen the offender whilst in custody. He has identified the offender as suffering from a bipolar disorder. There was also a possibility that about the time of the offending behaviour the offender had been suffering from lithium toxicity. There were two tests after he was taken into custody, one showed an appropriate level but the next was elevated above that. It may be, it was suggested by Dr Bonner, that a slow release formulation had been ingested. If so, of course, it is unlikely the lithium would have been at toxic levels on 26 November 2005. There were no other drug levels returned which would explain the offender's violent behaviour.

33. As to the bipolar disorder itself, and the lithium even if at a toxic level, Dr Bonner said, in response to Mr Archer when called as a witness before me:

In relation to what could generically be called impulse control if one is confronting the community with an event those of normal disposition are able to cope with it, what do you say generally in relation to bipolar disorder in a capacity to control anger, for example? --- The - if I might, your Honour, expand on that response with your permission. The capacity to control impulses is diminished in bipolar disorder. I should also say that it depends on the nature of the situation to which someone with bipolar disorder is faced. The situations that I've dealt with in many people with bipolar disorder have been ones in which the degree of interpersonal violence has been really relatively minor and the literature would suggest that interpersonal violence that results in very serious injury or death is relatively rare for people with bipolar disorder. So, I should just caveat that.

...

Are you able to say in what parameter Mr Cassidy was operating at that time immediately prior to his admission to BRC [Belconnen Remand Centre]? --- I'm not able to say with certainty, however it would not surprise me if I'm able to have an educated thought about what is likely to be the case that he may have had agitation at that time and that would not be out of keeping with the event or what is likely to be his pre-disposition with regards to his bipolar disorder.

34. Asked how his bipolar disorder would relate to `questions of violence', Dr Bonner responded:

... There are at least two factors. Firstly, from the outset it is unlikely to have been a major contribution to what I understand to have happened. It is very, very unlikely and quite rare that bipolar disorder contributes to a very serious assault or one in which someone's life is lost and in relation to Mr Cassidy's specific circumstances, I did not find a great deal of evidence that his bipolar disorder contributed significantly to what I understand to have happened.

35. He did consider that the offender's bipolar disorder was capable of effective management with medication.

36. The other subjective factor, which certainly excites sympathy for the offender, is his violently abused childhood. I set out the relevant portion of the pre sentence report and it was supported, I note, by evidence from his sister.

Mr Cassidy's entire childhood, and indeed adolescence, could best be characterised as one of sustained abuse, cruelty and almost complete lack of nurturing. It is reasonable to conclude significant trauma would have resulted from these experiences. There would not appear to have ever been any figure of influence, to direct or support Mr Cassidy to address these traumas. Not surprisingly his life took on a pattern of dislocation from family, itinerancy and at times homelessness, and involvement in relationships that mirrored the violence and substance abuse of his father's relationships.

Mr Cassidy's dependence upon, and abuse of, alcohol and illicit substances has by his own admission, been a way of life since his early teenage years. Mr Cassidy clearly indicated his reliance on alcohol and illicit substances as his primary coping mechanism to deal with stress and emotions.

Whether as a consequence of alcohol and substance abuse, or merely complicated by them, Mr Cassidy has also suffered ongoing disturbance in his mental health for which he has been actively under treatment for the last seven years. This treatment continues at the current time.

The lifelong impact of childhood trauma, and presence of underlying mental health issues were predictable factors impacting upon Mr Cassidy at the time he committed the offences. It is difficult however, to determine to what extent these factors influenced Mr Cassidy's behaviour on that day.

37. The offender does have a history of alcohol and drug abuse. Undoubtedly his own abuse as a child contributed to that. None of these factors, however, serves to explain his uncontrolled violence towards Trinaty.

38. His criminal history, given he is now 42 years of age, is remarkably short. There are some minor drug offences and two dishonesty convictions. He has, also, been compulsorily detained for mental health treatment in South Australia.

39. To an extent, his lack of prior violent behaviour save for the incident involving Ms Wilson, is a favourable matter. Against that, it is an egregiously violent offence that he has now committed.

40. It is in his favour that he assisted police and pleaded guilty at an early stage. His plea is also, I accept, driven by a genuine remorse for his actions on 26 November 2005.

41. His prospects for rehabilitation at the end of his sentence are good but, as Mr Doig submits and R v Hoerler counsels, this crime calls for condign punishment to condemn this heinous crime and deter others.

42. I have indicated already that none of the factors which could lessen moral culpability have, in this case, that effect. What was the offender's state of mind? I accept he did not intend to kill. He did, however, intend to injure Trinaty. He was reckless as to how severe that injury was. His state of mind was, therefore, in my view, only one level less culpable than would be the case for murder by intentional infliction of grievous bodily harm.

43. The blow to Ms Wilson was, of course, deliberate and to be condemned as an act of violence against one weaker than himself. It was also an act of cowardly violence. It was however, one blow only unlike the situation with Trinaty. It caused no serious injury.

44. I therefore impose sentence as follows: Darren Lee Cassidy, please stand:

For the offence in Count 1, you are convicted and you are sentenced to 15 years' imprisonment.

On the second Count, you are convicted and you are sentenced to three months' imprisonment.

Those sentences are to be cumulative one upon the other.

Those sentences will commence on 27 November 2005. I fix a period of 10 years and 2 months from that date as the period to be served before you will be eligible for parole.

I direct that all medical and other reports be sent to the prison to which you will go with a recommendation that you be treated as a "Prisoner at Risk".

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the plaintiff: Director of Public Prosecutions for the ACT

Solicitor for the defendant: Legal Aid Office (ACT)