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[2008] NSWSC 204
Supreme Court of NSW
2008-02-01
Studdert AJ, Studdert J
Original judgment source is linked above.
DECISION : For the manslaughter of the deceased sentenced to imprisonment with a non-parole period of six years nine months commencing on 20 June 2006 and expiring on 19 March 2013 and a balance of term of two years three months expiring on 19 June 2015. The first date eligible for release to parole will be 19 March 2013.
CATCHWORDS : CRIMINAL LAW - Sentencing - Manslaughter - victim a young child - offender responsible for her care - element of deterrence
LEGISLATION CITED : Children's (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act
Bollen (1998) 99 ACR 510 Hoerler 147 ACR 520 Howard [2000] NSWSC 876 Previtera (1997) 94 ACR 76 R v Bilton [2000] NSWSC 1113 R v Blacklidge NSWCCA unreported 12th December 1995 R v Dalton [2005] NSWCCA 156 R v Howard [2001] NSWCCA 309 R v Johnson [2004] NSWCCA 76 CASES CITED : R v Leach [2007] NSWSC 355 R v Marshall [2003] NSWSC 448 R v Mundene [2007] NSWSC 355 R v Recalde [2000] NSWSC 1247 R v Webb [2002] NSWSC 618 R v Wickham [2004] NSWCCA 193 R v Wilson (2005) 62 NSWLR 346 R v Woodland [2001] NSWSC 416 Vaughan 1991 56ACR 355; Ditfort NSWCCA 17 March 1992 Veen v The Queen No 2 (1987-1988) 164 CLR 465
COUNSEL : P Winch (Accused) W Creasey (Crown)
SOLICITORS : S O'Connor - Legal Aid Commission S Kavanagh - Solicitor for Public Prosecutions
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST
SENTENCE 1 STUDDERT J: The offender, Christopher Lee Compton, is before the Court to be sentenced for the crime of Manslaughter. The victim of the crime was an infant person and s 11 of the Children's (Criminal Proceedings) Act 1987 applies: see s 11(1) and s 11(1A)(b). Neither the mother of the victim, nor the grandfather of the victim consents to the publication of the name of the victim and when I heard evidence on sentence on 1st February last, I made an order until further order that there be no publication of the victim's name connecting her with the proceedings. I now continue that order and hence I shall refer to the victim in these remarks on sentence only as "the deceased".
2 The offender above named was charged with the murder of the deceased at Mount Hutton on 13th January 2005. When arraigned before me on 29th January 2008, he pleaded not guilty of murder, but guilty to manslaughter and the Crown accepted that plea in satisfaction of the indictment. Hence the offender is before me today to be sentenced for the crime of Manslaughter, by reason of the commission of unlawful and dangerous conduct causing death.
3 Following post-mortem examination on 13th and 14th January 2005, conducted by Dr Lee, the doctor concluded that the deceased died as a consequence of blunt head trauma. Dr Lee's conclusions are conveniently summarised in paragraphs 27 to 31 of the Agreed Statement of Facts placed before me: "27. Dr LEE found evidence of multiple external and internal injuries, including bruising to the head and body, frontal skull damage, haemorrhage in the right eye, heavy extensive internal bruising to the abdomen and central upper abdominal injuries. He concluded these were non-accidental, not related to normal toddler activities, occurring at separate times between immediately ante mortem to weeks. All were blunt force type.
5 At the time of the commission of this crime the offender was living in a de-facto relationship with the mother of the deceased. Also living in the household were two other children born to the deceased's mother from previous partners. The other children were aged six and four years respectively, but the deceased was only 17 months old at the time of her death. Both the offender and the victim's mother used drugs and on the evening of the 12th January 2005 the offender was left caring for the children whilst their mother went to a local shop and was away from the home for about 40 minutes. Throughout the afternoon preceding that departure the offender had been on the phone attempting to obtain the supply of amphetamines on credit and it is agreed that the offender was becoming increasingly angry and aggressive as he was coming down from amphetamines used and shared with the deceased's mother on the previous day. (See paragraph 7 of the statement of agreed facts). 6 The offender has given no account as to how or when or in what circumstances he inflicted the deceased's head injuries and unhappily the deceased's mother gave no close attention to the deceased's physical condition having returned from her shopping expedition. The deceased's mother did enter the deceased's bedroom where she found the child lying on a towel in front of the fan and she appeared then to be asleep. (See paragraph 11 of the statement of agreed facts). It was the offender who later put the child in her cot. Later still the deceased's mother checked on the deceased during the night but did not find her awake. About 6.30 am on the 13th January 2005 the offender went to the deceased's room and came out of it carrying the deceased calling out "she doesn't look right". The ambulance service was called and the deceased was found to be unconscious and not breathing. Her skin was cold to touch. Attempts to revive the deceased were unsuccessful and life was pronounced extinct at about 7.45 am on 13th January.
7 When police visited the home where the deceased had died they found reddish brown stains in the head area of the deceased's cot sheets and staining on the double bed sheets from the lounge room.
8 The utilitarian value of the offender's plea must be given appropriate weight but the offender has never given a truthful account as to what he did to cause the death of the deceased. When first interviewed by police before the autopsy was conducted the offender denied being at home before 8 pm the previous evening and he told the police that the deceased's mother had informed him that the child had had an accident. Shortly before the ERISP of 20th September 2005 the offender did admit to police that he punched the deceased in the stomach but that he only did so twice, and that he did not touch her head. When he gave the recorded interview on 20th September 2005 the offender admitted punching the deceased twice, describing in those admissions the force used as "not hard" (question and answer 179) and "hard but not that hard" (question and answer 199). In that interview the offender insisted that "he never touched (the deceased) in the head" (question 296, question 308). Further, he asserted there was "no chance" that he could have caused the head injuries (question and answer 303). By his plea before this Court the offender has acknowledged the falsehood of what he told the police in the recorded interview and I must say having heard and watched the evidence of that interview that I found the offender's responses to questions asked of him to be thoroughly unsatisfactory.
9 The offender did tell the Police that the deceased fell from a slippery dip. A biomechanical engineer, Dr Gibson, concluded that it was highly unlikely that the deceased's head injuries were due to a fall from a slippery dip. Having regard to the offender's plea and the totality of the evidence placed before me, I do not find that any accident such as that asserted by the offender contributed to the cause of death. Indeed, the evidence does not establish that there was any fall from a slippery dip at all.
10 The conclusion is inescapable from a consideration of the statement of agreed facts and the other evidence placed before me that the offender inflicted the fatal injuries in the early evening of 12th January 2005, as Mr Winch properly acknowledged in his thoughtful submissions on sentence. The offender has given no evidence before this Court by way of explanation for doing what he did. He admitted to punching the deceased. He said he could not handle her crying or the stress that the deceased's mother was putting him through (see Question and Answer 188 of the ERISP). In giving this explanation of punching the deceased he did so in the context of also denying that he ever touched (the deceased) in the head (see Question and Answer 308 of the ERISP).
11 Viewed objectively the circumstances of this crime of manslaughter were indeed serious. The offender betrayed the trust which had been placed upon him in caring for an extremely dependent and vulnerable infant and the Courts have repeatedly emphasised the need for the imposition of deterrent sentences for this type of crime: (see Vaughan 1991 56ACR 355; Ditfort NSWCCA 17 March 1992; Howard [2000] NSWSC 876 and Hoerler 147 ACR 520 where Spigelman CJ said at 530 para 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 discretions. 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 exercising discretion. However, there is such a wide variety of other factors that may accompany this circumstance, that sentences for offences which share only this characteristic would not be expected to result in an identifiable sentencing range or pattern."
12 I add that s 21A (2) of the Crimes (Sentencing Procedure) Act specifically refers to a position of trust or authority and the vulnerability of the victim as being aggravating factors: s 21A (2)(k) and (l).
13 The offender having inflicted the head injuries did nothing to seek appropriate medical attention for the deceased. In the statement of agreed facts there is reference to telephone communications which the offender had with a friend on the day that the offender caused the fatal injuries. He expressed concern about what he had done and anxiety for the deceased's condition. I refer to paragraph 8 of the statement of agreed facts: "8. On one occasion, the offender hung up abruptly after saying to his friend, 'Oh, what have I done?' Shortly after, the offender rang his friend again. He sounded panicky and upset. He said, '[the deceased] has fallen off the swing. She's not breathing and she's gone blue. What do I do?' He was told to take [the deceased] to hospital or call an ambulance. In a series of calls thereafter the offender gave different accounts of what had happened to [the deceased], but said he couldn't call an ambulance. He said she had fallen off the pool, fallen over out the back; that he had put her in the bath and walked out for a bit, and found her under the water with blue lips; that he had put her into bed but she was not breathing. The friend places these calls as occurring in the late afternoon/evening."
14 However, the offender neither sought appropriate medical assessment and treatment nor did he alert the deceased's mother to precisely what he had done.
15 Following the death of the deceased the offender endeavoured to avoid responsibility. I referred earlier to lies he told the police about his not being present in the premises at the relevant time, and the offender prevailed upon the deceased's mother to support a false alibi that he was not present at the premises when the deceased was injured. (See paragraph 22 of the statement of agreed facts). Moreover, the offender telephoned the person to whom he had made the calls, referred to in paragraph 8 of the statement of agreed facts, asking him to say those calls never took place (see paragraph 23 of the statement of agreed facts).
16 When interviewed by Dr Samuels for the purposes of the preparation of a report by the doctor in May 2005 the offender told that doctor that he did not know why the deceased died: (see page 3 of Dr Samuel's report dated 19 May 2005, being part of exhibit C). The offender told Associate Professor Hayes when assessed on 13th April 2006 (see exhibit 1) that he felt as if he had "had no time to grieve for the baby" and that he had received no counselling. This was in the context of an assessment in which the offender informed Associate Professor Hayes that he intended to plead not guilty because he "did not do it". 17 Having reflected upon the evidence in this particular case, I am unable to make a finding that the offender is remorseful and contrite. I consider that the offender's plea simply reflects his appreciation of the strength of the case against him. Nevertheless the offender in pleading guilty has avoided the need for a trial and for all the relevant considerations flowing from this he is entitled to a discount, to reflect the utilitarian value of his plea. However the plea was not a plea entered or proffered at the first available opportunity. Following committal proceedings on 26th March 2007 the offender was committed for trial charged with murder. He was arraigned upon that charge on 6th July 2007 and pleaded not guilty and his trial was then fixed to take place in Newcastle on 29th January 2008. He first offered to plead guilty to manslaughter on 28th November 2007. The Crown accepted that proposal on 18th January 2008. The Crown has submitted in these circumstances that the discount for the plea of guilty ought not to exceed 10% and I accept that submission. It seems to me that a 10% discount is appropriate in this case. 18 The offender has a criminal record, including "serious personal violence offences" as defined for the purposes of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. On the 7th of May 1999 the offender was convicted of assault occasioning actual bodily harm upon his then de facto wife, Elina Forrester. The same de facto wife was the victim of further assaults, for which the offender was convicted on the 24th of March 2004. Then on 15 March 2006, by which time the offender was in a relationship with the deceased's mother, the offender was convicted for assaulting her. This assault preceded the fatal assault upon the deceased and was committed on 31 December 2004. An ADVO was put in place and the offender contravened that order by committing further assaults on the deceased's mother, on 4 April 2005 on 15 August 2005. Convictions followed for these offences on 15 March 2006. Then on 23 January 2008 there were other convictions for assault occasioning actual bodily harm and contravening the ADVO, these offences having been committed on 7 July 2005. Once again, the victim of these offences was the deceased's mother. 19 When charged with the offence for which he is now to be sentenced the offender was otherwise in custody. He was imprisoned for a term of 12 months commencing on 20 September 2005, with a non-parole period of nine months for the offence of assault occasioning actual bodily harm and was sentenced concurrently to a like term of imprisonment for contravention of the AVO, which means that the offender would have been in custody serving those terms of imprisonment until at least 19 June 2006. In these circumstances the Crown submits, and I accept, that it is appropriate that the sentence I now impose should be set to commence on 20 June 2006. 20 The Crown has submitted that the criminal history enlivens s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, and that the offences were committed in a domestic setting. It was submitted that those offences committed after the death of the deceased displayed a continuing attitude of disobedience of the law, particularly concerning offences of violence in a domestic setting. Mr Winch, on the other hand, submitted that the previous convictions for offences of violence should be regarded as of little consequence as an aggravating factor because the record in respect of such offences involved adults and not children. 21 I consider that the criminal history is of relevance and renders the consideration addressed in s 21A(3)(e) inapplicable. Moreover, I do not consider the circumstance that the criminal history under consideration involved female adults renders it irrelevant because the deceased was a child. 22 In weighing the significance of the extended criminal history I must take account of what was said in Veen v The Queen No 2 (1987-1988) 164 CLR 465. 23 That tendered criminal history must not be given such weight as to lead to the imposition of a penalty which is out of proportion to the gravity of the crime for which the offender is now to be punished. I heed what was said by Howie J in R v Wickham [2004] NSWCCA 193 at paragraph 24 and what was said in R v Johnson [2004] NSWCCA 76, in particular at paragraphs 32 to 37. 24 The offender's record is not to be regarded as increasing the gravity of the offence committed against the deceased. It is to be weighed when addressing elements of retribution, deterrence and the protection of society. 25 The offender was born on 10th August 1974. The report of Associate Professor Hayes records some matters of history to which I refer. The offender was brought up by his mother and stepfather not having met his natural father. The stepfather drank heavily and physically abused him. The offender told Associate Professor Hayes that he had always been a loner and that he left school in year 10. After that he did unskilled work of a labouring type. He started to abuse drugs at the age of 16. Associate Professor Hayes considered that the offender had two psychological mitigating factors, identified by her as intellectual disability and paranoid psychosis. The intellectual disability affected his ability to reason and to make decisions, and the paranoid psychosis, which she thought was probably drug related, was considered to have been present for some 7 years.
26 Mr Winch tendered a report from Ms Hockley from the Long Bay Correctional Complex dealing with the offender's conditions of detention. The offender is housed in the Additional Support Unit, which supports inmates with cognitive impairment. Ms Hockley has reported that the offender is attending classes in literacy, numeracy and communication skill development and has already attended courses in cleaning and hygiene kitchen practices and nutrition. It is reported that the offender is cooperative and that he behaved appropriately in class. He has been described as a good worker who has developed skills in initiating work. On 1st February 2008 Ms Hockley also reported that the offender has not had disciplinary action taken against him and that he does not have a record of dirty urine. Ms Hockley's reports are favourable to the offender, but I find myself unable when considering all the evidence to make a positive finding as to the offenders' prospects of rehabilitation. Nor do I find myself able to come to the conclusion that the offender is unlikely to re-offend. 27 Mr Winch tendered a report from Dr Walker, Psychiatrist, prepared in November 2003 at a time when the offender was detained at Cessnock Correctional Centre. At that time Dr Walker diagnosed the offender as suffering from amphetamine addiction and paranoid schizophrenia. Finally, there was a recent report from Dr Nielssen, Psychiatrist, dated 31st January 2008 and this followed an assessment on 10th and 31st May 2007. Dr Nielssen has treated the offender at Long Bay, seeing him for this purpose most recently on 17th January 2008. The offender denied having any chronic mental illness and Dr Nielssen was unable to determine what his mental state was as at the time of the commission of this crime. He noted however that the offender was acutely psychotic when he was admitted to prison in 2006. Dr Nielssen was being asked to determine the offender's mental state at the time of the offence and was unable to do so. However he did consider that the offender had an underlying mental illness and a well documented intellectual disability. Mr Winch submitted that because of his intellectual disability and his drug abuse the offender will require intensive supervision and assistance following his ultimate release from prison and he submitted that these considerations warranted a finding of special circumstances. He also submitted that the circumstance that the offender was on protection within the prison system also warranted a finding of special circumstances.
28 I am not persuaded by the evidence reviewed that this is a case in which I should find special circumstances and I do not do so. The sentence as I intend to structure it affords what I regard as adequate opportunity for the offender's supervision on parole, and I consider that the offender should have no opportunity to spend a lesser period in custody than that I am about to set. Having reflected on the expert evidence reviewed I am unable to find that any mental difficulty that the offender may have was causatively linked to the crime for which he is now to be sentenced.
29 I accept, as Mr Winch submitted, that there is no evidence that the offence was either planned or premeditated.
30 There were three Victim Impact Statements placed before the Court and the deceased's maternal grandfather read his statement. His distress about this crime and its impact on the family unit was manifest. In addition there was a victim impact statement received from the step-grandmother of the deceased, and that too I have considered closely. A further Victim Impact Statement was received from the deceased's mother. This incorporated a psychologist's report dated 24th January 2008. This comprehensive report addressed, inter alia, the impact which this crime has had upon the deceased's mother. I acknowledge the evidence contained in the statements to which I have referred and the grief that has been inflicted upon the family members from whom those victim impact statements come but I must heed what has been determined as their effect in these proceedings in Previtera (1997) 94 ACR 76 and in Bollen (1998) 99 ACR 510.
31 Mr Winch drew attention to statistics supplied by the Judicial Commission of NSW concerning sentences imposed for the crime of manslaughter. These statistics identified a cohort of 172 offenders imprisoned for manslaughter. Mr Winch referred to the range of head sentences as being from three years to twenty years, with non parole periods ranging from 12 months to 12 years. He pointed out that the median head sentence for all offenders was seven years and the median non parole period for all offenders was 4 years. Allowing for the guilty plea it was submitted that the median non-parole period for persons in this category was of the order of 4 years and Mr Winch submitted that the sentence to be imposed upon this offender should be about the median.
32 It has been pointed out repeatedly in the Courts where the crime of manslaughter is being addressed that the utmost caution must be exercised in referring to other sentences in order to determine what sentence is appropriate in a particular case. In his much cited observations in R v Blacklidge NSWCCA unreported 12th December 1995, Gleeson CJ said: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances and culpability."
33 Nevertheless, before determining what I perceive to be an appropriate sentence in the present case, I have given consideration to sentences imposed in other cases for the manslaughter of young children. In particular, I have referred to R v Bilton [2000] NSWSC 1113; R v Recalde [2000] NSWSC 1247; R v Howard [2001] NSWCCA 309; R v Woodland [2001] NSWSC 416; R v Webb [2002] NSWSC 618; R v Marshall [2003] NSWSC 448; R v Hoerler (supra); R v Dalton [2005] NSWCCA 156; R v Wilson (2005) 62 NSWLR 346; R v Leach [2007] NSWSC 355 and R v Mundene [2007] NSWSC 355. I do not propose to record the facts and sentences in the above cases, which I have considered for present purposes as no two cases contain the same features either objective or subjective. In Mundene the sentence imposed was one of six years and nine months' with a non-parole period of three years. Here the death was caused by shaking a seven-month-old child. In Hoerler the sentence imposed at first instance was increased from a non-parole period of eight years and three months' with a parole period of two years and nine months' to a term of imprisonment of 14 years and four months' with a non-parole period of 10 years and nine months'. In Hoerler the deceased sustained widespread injuries, including but not limited to head injuries and there were crushing injuries to the toes of the deceased and it was indicated that those injuries were consistent with having been caused by the infliction of a clamp. The sentence in Mundene was at the lower limit of the sentences I considered and the sentence in Hoerler was at the upper limit. Again, I remind myself of the care to be exercised in considering sentences in other cases in addressing my present task. I must determine the sentence appropriate in this particular case of manslaughter, weighing all relevant objective and subjective features of the case. Whilst I have regard to the subjective features in this case, including the content of the psychologist's report and the psychiatric report relied upon by Mr Winch, I must endeavour to impose a sentence that has due regard to the offender's criminality and the special need for deterrent sentences in this type of case. 34 Accordingly I now pass sentence as follows:
Christopher Leigh Compton for the manslaughter of the deceased I sentence you to imprisonment with a non-parole period of six years nine months commencing on 20 June 2006 and expiring on 19 March 2013 and a balance of term of two years three months expiring on 19 June 2015. The first date upon which you will become eligible for release to parole will be 19 March 2013. **********
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R
Compton