R v Dempsey [2001] VSC 123

8. Specifically, however, it has been asserted by the prosecution and acknowledged by you that the death of the baby was caused by a punch to the head delivered by you and to which a fractured femur, also sustained at your hand some days later, was a contributing factor.

11. Against that background I observe that you have previously appeared before the court on six occasions between 1987 and 1992. Those appearances reflect your long-term involvement with drugs and the continuing strength of your addiction. Of significance in this context is the fact that your record includes a conviction for armed robbery committed at a bank branch and in which you employed a replica pistol. Your counsel has informed me and I accept that the motivation for that offence was a desire to obtain money for drugs for your then female partner and yourself.

14. The circumstances surrounding the commission of the offence that brings you before this court have been outlined by the Prosecutor, Miss Sexton, in the course of the plea preceding. After perusal of the depositions and other material with which I have been provided, I have decided that for present purposes it is sufficient to repeat that summary almost verbatim.

You met a woman named Kathleen Emmett in Port Fairy in 1995 and within a week the two of you entered into a relationship, left Port Fairy, and moved to Queensland. You were married in Nambour in June 1996 when your wife and you were expecting your first child. It appears that the two of you were both heavy drug users and remained so throughout your relationship until the death of the deceased.

Shortly after the New Year in 1997, you moved with your wife and the recently born child, a boy, from Queensland to Victoria, ultimately settling in the

Mt Beauty area, where Kathleen Dempsey's parents were then residing. In September 1997 you rented a large but somewhat run down farm house in a small hamlet known as Upper Gundowring on the Mullagong Road about halfway between Mt Beauty and Wodonga.

Your second son, Bo-Dylan Stephen Dempsey, was born on 24 May 1998 at the Wodonga Hospital. He was thought to be four weeks premature. After five days in hospital he went home with his mother Kathleen to begin his life with you and his brother, then aged 19 months.

On 12 August 1998, Bo-Dylan was approaching the end of his 12th week since birth. At that time your wife and you owned a number of cars which were located on the property, but these were often not in working condition. On this day, having managed to get one of the vehicles working, you decided to take the family for a ride around the property, that particular vehicle not being registered for use on the road. Whilst Kathleen Dempsey was putting the older child into the car, you went to collect Bo-Dylan from his cot. It was about 2.30 p.m. Suddenly you came running out of the house with your baby son in your arms. He was not breathing, his skin was mottled and of a purplish colour in places. His eyes were partly open. He appeared to be dead. The family jumped into the car and drove to the nearest neighbour to attempt to secure assistance. However, there was no one at home. You began to drive towards a hospital located at Mt Beauty and on the way stopped momentarily to ask council workers beside the road to call for an ambulance, which they did. An ambulance met the car just outside Tawonga and the ambulance officer confirmed the obvious: Bo-Dylan Dempsey was dead. The child was taken to the hospital at Mt Beauty, where at 3.10 p.m. on 12 August 1998 life was pronounced extinct.

An autopsy was conducted on the following day, with the findings being made that the baby had died from head injuries sustained some days, probably more than seven, before his death. The head injury included a fracture of a number of skull bones. He had also suffered a fractured right femur some three to four days before his death. [My interpolation: it is significant that there was a substantial interval between these assaults.]

The examination disclosed that Bo-Dylan's skull was in fact fractured in the following ways: a fracture extending nine centimetres, or three and a half inches, from the top of the head towards the back; a fracture extending four centimetres, or one and a half inches, from the front top of the head forwards, and then travelling along the floor of the skull inside the skull behind the right eye and across the side of the skull on the right. A point 6 centimetre laceration was found on the surface of the brain itself and there were a number of sites which were haemorrhaging. [My interpolation: it would appear to be reasonably clear that the baby, who it must not be forgotten was only 12 weeks old and who you subsequently admitted was lying in his cot at the time, must have been quite savagely struck at the time that those injuries were sustained.]

Bo-Dylan had arrived at the Mt Beauty Hospital on 12 August with a splint on his right leg from hip to heel. The splint was made of a plastic ruler, broken in two, bandaged onto his leg, with strips of black lycra material. He had no outward sign of head injury, other than the small remnant of a black eye.

You made a statement to police on the evening of 12 August 1998 and were interviewed by them in the early hours of 14 August 1998. You explained the leg injury as having occurred on the previous Sunday night, 9 August, in an accident where Bo-Dylan slipped out of your hands and you had grabbed his leg before he hit the ground. You said that your wife and you had placed the homemade splint on his leg. You denied any knowledge of the skull fractures and were unable to provide any explanation for the massive head injuries, other than accidental causes, including the finding of a toy in Bo-Dylan's cot, and assuming that the 20-month old brother had thrown it in, hitting him. When it was put to you by the police that you had inflicted the injury to the skull, you denied this vehemently.

Your wife also made a statement and was interviewed by the police on 13 August 1998. In short she said that she was completely unaware of the head injury and had no idea how it might have happened. As regards the broken leg, she told the police that she was aware that Bo-Dylan's leg had been hurt on the Sunday night before his death and she had assisted you to place the splint on the leg.

Almost 12 months past while the Homicide Squad further investigated the matter, including putting into effect a covert undercover operation and seeking advice from the Office of Public Prosecutions. It was ultimately decided upon that advice to charge both your wife and yourself with manslaughter on the basis of your negligence in failing to secure treatment for your son after the injuries were caused, whoever had caused them.

A week before this decision was taken by the police, at a time when neither of you knew that you were to be arrested and charged, you told your wife for the first time that you had killed Bo-Dylan. Upon arrest a week later on 5 August 1999, you told the police that you had killed your son by punching him once to the head whilst he lay in his cot. You said you were just crazy, thinking crazy things, and had taken a lot of Codeine for a toothache, as well as speed. [My interpolation: I understand that both your wife and yourself were using substantial amounts of high grade amphetamine called ice at around that time, and it is likely that your intellectual and emotional functioning was significantly impaired at around that period.] You spoke further about your state of mind, the madness you were going through, and of other times when you had suffered such bouts of craziness. You also admitted that a couple of days before Bo-Dylan died his leg was broken when you got angry, got hold of his leg, and "pushed it a bit." [My interpolation: I observe that you did not apparently react to your initial assault by experiencing a sense of shame or guilt over your conduct, but rather engaged in further violence towards the child, nor do you suggest in your deliberately understated and clearly inaccurate description that you were acting out of any other motive than a desire to hurt Bo-Dylan when the injury to the leg was caused.] You said you were terrified about taking your son to hospital, partly you said because of the injury to the head, which by that time had manifested itself in a black eye. You said you lied to your wife about the black eye and told her that you did not know how it had happened. You said that you had convinced your wife that your son would be all right, although she tried every day to get you to take the baby to hospital.

[My interpolation: it is evident that you were well aware of the seriousness of what you had done on each occasion and that you were far more concerned with the possible consequences to yourself of disclosure of what had transpired than you were with the need to attend to the welfare of the child. I should also add in this context that your counsel has contended that your actions should be viewed against a background of mental instability and drug involvement, and argued that you should be perceived as having only limited control of yourself at the time. Whilst I accept that there is some force in those submissions - and I will return to them - I observe that you were clearly in sufficient control of yourself, and it seems of your wife, to adopt a self-protective approach from the earliest stages.]

30. The crime of manslaughter, which you committed, can arise in a wide variety of circumstances and there are different formulations of its elements to encompass them. As I have earlier indicated, the formulation applicable in your case is encapsulated in the expression "manslaughter by an unlawful and dangerous act." The acts of violence which you perpetrated against a helpless child were of course unlawful and clearly dangerous in the sense that any reasonable person would have appreciated that to punch a baby in the head, as you did, would expose the infant to an appreciable risk of death or injury.

33. I have on many occasions when handing down sentences upon persons who have through unlawful actions brought about the death of another, referred to the inviolability of human life as a fundamental precept of our society and our law. When the life lost is that of a child for whose welfare the perpetrator was as parent, guardian and simply as an adult human being personally responsible, the situation must be viewed very gravely. After all, the true value of any community must be assessed in terms of the degree of genuine recognition that it gives to the rights and dignity of its most vulnerable and disadvantaged members. The courts, in my opinion, have an obligation through the sentences that they impose upon persons who act as you have done, to endeavour to protect those who are so exposed, be they young or old, against the violent abuse of physical power. Perpetrators who criminally beat or otherwise hurt children as a means of relieving their own sense of frustration or anger must anticipate the possibility that the law will respond in a fashion designed to vindicate the victim's rights and demonstrate the commitment of the society, which they represent, to its stated values.

36. In explanation of the circumstances under which you came to engage in such horrendous behaviour, Mr Burke of counsel, who appears on your behalf, drew attention to your own unfortunate background and its sequelae of long-term loss of self-esteem and drug addiction, as well as what he contended was a history of mental instability.

39. With respect to this last aspect, Dr Walton expressed the opinion that on the basis of the history provided to him, you have been subject to recurrent bouts of paranoid psychosis for many years, although there was only one occasion in 1986 on which you were formally treated for that condition. He opined somewhat tentatively that the condition was not simply the consequence of drug abuse, acknowledging that it was necessary to bear in mind that during the last two years that you have remained drug-free, following your arrest, you have not experienced any psychotic episode or required medication. I note also in relation to this aspect that you apparently indicated, when interviewed at one stage by an officer of the Queensland Corrective Services Commission, that in relation to the 1986 occasion your admission to the Woden Valley Community Hospital followed an overdose of amphetamine.

42. You have through your plea accepted that you acted in a conscious, voluntary fashion, and are accordingly responsible for your behaviour, and I am far from persuaded on the balance of probabilities that your conduct should be viewed as, in part at least, the product of some psychotic thought processes, independent of drug abuse.

45. It does not follow, however, that you were functioning normally, or that the situation in your home could be regarded as other than chaotic. Your wife and yourself were heavily addicted to drugs and appear to have been unable to look after yourselves properly, without the added responsibility of a very young child and a baby. Your wife was not well. You had little, if any, money, and judging from the photographs taken by the police investigators, the house in which you were residing was filthy and the general conditions under which you were living were appallingly bad. I consider that it would be reasonable to infer that as your circumstances deteriorated, your level of anger and frustration probably increased. Being either unable or unwilling to address the situation responsibly, you attacked a helpless baby on two separate occasions, safe in the knowledge that your victim would not be able either to resist or complain. In my opinion there is little in the circumstances which can be regarded as ameliorating the seriousness of such actions.

48. Perhaps it would have been possible to view your behaviour in a more favourable light and to have interpreted the striking of a heavy blow to your son's head as reflecting some instantly regretted loss of control, possibly occasioned by incessant crying whilst you were in an emotionally volatile state, had you not perpetrated a subsequent act of violence against him when you snapped his femur in a fit of anger and then compounded the situation by refusing to secure the medical assistance that he obviously needed at that stage, if not before. You appear to have been indifferent to his state of well-being and to have used him as an object to relieve your own sense of frustration.

51. With respect to your personal background, which must also be taken into account when determining an appropriate sentence, you are now aged 32 years, having been born on 30 August 1968. Your mother died when you were two years of age and your father remarried. I understand that your step-mother never really accepted the children from the earlier marriage and that you were singled out for repeated beatings and abuse by her. Your brother Allan Dempsey gave evidence of the repeated beatings to which you were subject, and I think that it is in the present context worthwhile to set out a portion of what he said on this aspect. Questions at this stage were being asked by Mr Burke:

"Did you observe some violence?---Yes, lots of it." "That Kylie speaks about?---Lots of it." "How bad was it?---One of the worst times I saw was I was doing an apprenticeship as a mechanic in the same town as living with Mum and Dad and the rest of the family and come home from work 5.30, something like that, and walked into the back door. And I could hear the squealing as I came in, or even before I came in the back door, and I could hear it as I was coming in the back - in the back driveway, walked into the bathroom, and my step-mother had the four children in there, all undressed. It was like two in and two out, sort of thing, that was the routine. As I walked into the bathroom, my step-mother had a handful of his hair. He was approximately, I think - probably eight. My memory sometimes is not, you know - I can't recall exact dates and times. But as I walked in, she had him by the hair and was bashing his head into the bath tap nozzle - not the tap, but the bath tap outlet, you know, on his forehead here. I witnesses that, saw that." "Who stopped it?---Me." "How were you able to achieve that?---Well, I was - at 17 I was only a weedy skinny little fella, and my step-mother was quite strong and quite big, and the only way I could protect the kids was to grab her by the arms and throw her out of the room that the kids were in and then shut the door and hold the door. And you know in a normal house you've just got round knobs and there's no deadlocks or anything, so I used to just put my foot on it or the door jam and hold the door shut and keep her out. At this particular time the other three kids, as I said, were in the room: Bruce, Christopher and Kylie. And I'll never forget, they were like this, Your Honour (demonstrating), their whole bodies were shaking like this, they were that petrified. There was blood all over the bathroom walls. I threw her out of the bathroom by her arms and stood on the door and the four little kids were hanging onto my legs because I can't comfort them and because - and I'm sorry, this is hard, because I had to hold the door to keep her out, and they were hanging onto my legs to get comfort, but they were like this. That was probably one of the worst I've seen, but I'd seen similar. But there was - that was probably an example of the worst, and the beltings he got, one time he stopped breathing, and that was when she was flogging him with the belt."

55. Eventually you were sent to a boarding college when you were aged 12 years and you remained there for 12 months, leaving in year nine. You then went to Canberra to live with a sister and brother-in-law, but their marriage broke up shortly afterwards. Refusing to return to your parents' home, you remained in Canberra, almost immediately and at the age of 13 years becoming involved in the abuse of a number of different drugs, including heroin, amphetamine, marijuana and alcohol.

58. I observe in your favour that over the years that followed you did make some serious attempts to free yourself from that addiction, on occasions spending substantial periods in drug rehabilitation centres, but after each such attempt relapsed. Not surprisingly, you have experienced long periods of unemployment and have led a generally unstable existence. Your relationship with your wife reflected this state of affairs and it too appears from time to time to have been quite stormy.

61. Nevertheless, it appears that you are an intelligent and articulate person, and even at this stage must be regarded as possessing prospects for rehabilitation. I note and take into account in your favour that you have commenced to undertake courses whilst in custody since your arrest, of an education and religious character, in addition to relapse prevention programs.

64. I accept that you were, as a young child, subjected to extreme physical and emotional abuse. I accept also that that maltreatment has had a profoundly damaging effect upon you and dramatically affected the direction that your life has taken. By reason of that history, to some extent your level of culpability can be properly perceived as reduced. In this sense your own conduct represents an example of one of the possible consequences of child abuse perpetrated many years earlier. At the same time that history constitutes a stark reminder of the extreme seriousness with which the use of violence against children must be viewed and reinforces the need for the courts, on behalf of the community, to state in the simplest clearest terms: it simply will not be tolerated.

67. Whilst for a number of reasons, to which I have referred, including some possible underlying mental instability and the strength of your drug addiction, I consider the significance of general deterrence as a sentencing consideration must be lessened in your case, it nevertheless possesses importance as the courts endeavour to dissuade those who may be inclined to engage in such violence. I am not, however, of the view that specific deterrence needs to be taken into account.

70. I have no reason to doubt that you experience genuine remorse. I suspect that that sense will increase with the passage of time, as you contemplate the terrible legacy of distress and anguish that you have left for others, including your wife and your other children. In your case, as in many that come before this court, there are a number of persons who can properly be described as victims.

73. I have had regard to the sentences that have been handed down in this jurisdiction over recent years upon persons who have committed the crime of manslaughter, bearing in mind that they can be only of limited assistance as each case and each offender must be separately considered.

76. I have taken into account in your favour your plea of guilty and the length of time since your arrest that you have awaited the determination of this matter.

79. It is reasonable to have regard, I think, to the likelihood that you will probably serve the totality of your period of incarceration in the more restrictive environment of a protection unit, and that too must be taken into account.

82. Perhaps the point should be made at this stage that whilst the general attitude of prisoners in the mainstream gaol population to those who hurt or abuse children is known, what is not well recognised is the fact that many of them have experienced it personally and understand the impact that it has had on their lives.

85. After careful consideration of your case, I have arrived at the view that a substantial period of imprisonment must be imposed. You are sentenced to imprisonment for a period of nine years and I fix the period before which you become eligible for parole at seven years.

88. I declare that the period of 625 days that you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed. I direct that this declaration and its details be entered in the records of the court.

94. MISS SEXTON: The 464ZF application, Your Honour, that - - -

97. HIS HONOUR: Is there any objection to that application?

103. HIS HONOUR: All right. Yes, I will grant that application, that a sample be taken.