1 HER HONOUR: HMF pleaded guilty on 6 May 2005 to one count of manslaughter. That offence carries a maximum penalty of twenty five years' imprisonment.
2 Dominico Peter Turchino pleaded guilty on 21 June 2005 to concealing a serious indictable offence, namely maliciously inflict grievous bodily harm. That offence carries a maximum penalty of two years' imprisonment.
3 The tragic circumstances giving rise to these offences are set out in the agreed facts, which are part of exhibit A. In 2003 the offender, HMF, and the co-offender, Dominico Peter Turchino, were in a de facto relationship. On 13 October 2003 they moved into the address at unit 10, 1-3 Therry Street, South Strathfield to live as a family unit with S, born 17 February 2003, aged eight months. S is the daughter of HMF. No father was recorded on the deceased's birth certificate, although Mr Turchino believed that he was the biological father of the child, the victim in this matter. He actively cared for HMF during her pregnancy and for the deceased since her birth in February 2003.
4 Between 8 pm and 9 pm on Wednesday 15 October 2003 the co-offenders and the child were at their home address, having just returned from Mr Turchino's mother's home at 10 Therry St, South Strathfield. HMF prepared a bath for the deceased by filling a portable plastic baby bath with hot water. The bath was positioned on the kitchen bench adjacent to the sink.
5 HMF picked up the deceased and lowered her into the water. The deceased was positioned such that her head was elevated above the surface of the water; her legs were bent so that the knees remained above the surface of the water and most of her back, buttocks, genital area and rear of her head, arms and legs and the lower part of the abdomen were immersed in the water. This caused deep scald burns to the immersed areas of the child and she began screaming. A neighbour in the adjoining unit stated to police that this screaming was very loud, continuous screeching and crying of a baby and was terrifying, for a period consistent with one to one and a half hours.
6 The scalding caused extreme bright redness to the immersed areas and caused skin to shed from her body. HFM and Mr Turchino argued about what had happened, about the colour of the deceased's skin and the fact that an amount of the deceased's skin was present in the bath water. f placed the deceased on a baby change table and dried the deceased using a bath towel, whereupon further amounts of the skin were pealing off the child's body. HMF proceeded to rub the deceased's skin with an amount of cream and shampoo. At no time did either she or Mr Turchino telephone for any emergency services or any other persons to assist.
7 About midnight HMF placed the child in her pram and left the unit with the pram. Mr Turchino remained at the unit.
8 At about 1.20 am on 16 October 2003 a witness saw HMF with the pram at the intersection of Homebush Road and Liverpool Road, South Strathfield. The witness and HMF had a short conversation, during which HMF asked the witness for a variety of drugs. The witness continued to observe HMF from the window of his apartment and saw her attempting to flag down cars travelling along Liverpool Road.
9 A motor vehicle stopped and HMF negotiated with the driver a price to perform a sex act upon him. The driver of the vehicle and HMF entered the car park at the rear of the hotel located on the corner of Homebush and Liverpool Road where the witness lost sight of them. At this time HMF had the pram with her. Neither the witness nor the driver of the vehicle saw or heard the deceased at this time.
10 A short time later the witness saw HMF with the pram on the opposite side of the intersection. At this time she was banging loudly on the front window of a pharmacy. The witness and HMF had a verbal argument during which time both of them telephoned Triple O and requested police. HMF used the name "Helen McGovern" when speaking to the Triple O operator. She then left the area.
11 About 3.30 am police responded to a call that a woman was acting suspiciously in Therry Street, South Strathfield. On arrival police officers found HMF in Mooney Street, which is adjacent to Therry Street. They had a short conversation with her in which she stated she was "looking for baby stuff". Police noticed a wooden handled meat cleaver in the carriage of the pram and seized this item. As HMF moved from the rear of the pram to the front, the pram tipped backwards. HMF righted the pram onto its wheels which allowed the police officers to see the deceased child under a blanket in the pram. Police touched the deceased's face and noticed that the skin was very cold.
12 Police called for an ambulance to attend the scene. The ambulance arrived a short time later. However, when the ambulance officers attempted to examine the child, HMF became very aggressive, assaulting the two police officers. She was placed under arrest, cautioned and taken to Auburn Police Station. The deceased child was transported to Royal Prince Alfred Hospital and life was pronounced extinct and a death certificate issued.
13 At 6 am police spoke with Mr Turchino at 10/1-3 Therry Street, South Strathfield. He accompanied police back to Auburn Police Station. Detention warrants were then issued for both f and Mr Turchino.
14 HMF participated in an electronically recorded interview, in the course of which she told police that when she filled the deceased's bath up, her whole skin just went bright red, that this was very very unusual, that the deceased was screaming, that pieces of skin were coming off which she let fall into the bath. HMF said her reaction was it was a burn and that Mr Turchino told her that she had scalded or burnt the deceased.
15 As to why she did not call the police or the ambulance, HMF said that Dominico (that is Mr Turchino) wanted to ring an ambulance straight away but she had said no. If the deceased got worse then she would take her to hospital.
16 A search warrant was applied for and granted for the premises at 10/1-3 Therry Street, South Strathfield. That warrant was executed on 16 October 2003 at 3.30 in the afternoon. Once entry was gained, the interior of the premises were established as a crime scene.
17 During the subsequent examination of the premises a number of forensic exhibits were obtained. Amongst these were a number of samples which were human skin, being the deceased's, from the plastic baby bath, the kitchen sink and the drain of the main bath in the bathroom. A qualified plumber tested the temperature of the hot water using an approved and calibrated device. The temperature of the hot water from the kitchen sink tap was recorded at 67 degrees Celsius.
18 A post-mortem was conducted on the deceased child at the Glebe Morgue. In the report the recorded direct cause of death was burns. The findings were scald type burns involving most of the back of the trunk, upper and lower limbs, right side of the face and neck incorporating about seventy five percent of the body surface consistent with immersion in hot fluid and that the deceased died of severe scalding which led to the failure of her internal organs.
19 Dr Hugh Martin, a paediatric surgeon and burns specialist, also examined the deceased. He reported that the extent and depth of the burns were enough to be fatal; that the burns could be sustained by contact with water at over 60 degrees Celsius for more than a few seconds and that the resulting fluid loss from the blood could be fatal within a few hours. He concluded that due to sharp demarcation of the burn marks and the lack of splash evidence, the deceased had been deliberately immersed in the water as opposed to her falling in or splashing about in the bath.
20 At 8.15 am on 3 November 2003 HMF was arrested, along with Mr Turchino, outside the premises in South Strathfield. HMF has remained in custody since that time. Mr Turchino was released to bail after spending eleven days in custody.
21 The principal issue falling for determination by the court for the purposes of sentencing HMF is whether I am satisfied beyond reasonable doubt that deliberate immersion of the child in hot water was an unlawful and dangerous act or whether, absent that finding, it amounted to an act of criminal negligence.
22 There is no dispute that the act of immersion was deliberate. There is, however, a critical distinction to be observed between deliberate immersion in ignorance of the possibility that the temperature of the water would cause really serious injury to the child and deliberate immersion in the knowledge or belief that the child may be seriously injured by the infliction of scalding burns to the skin. That distinction merely observes that bathing a child per se is not an unlawful act. What renders it unlawful and relevantly dangerous is an appreciation by a reasonable person in HMF's position that there was a risk of injury to the child. An appreciation of that risk assumes awareness of the temperature of the water.
23 The manslaughter of a child by gross negligence, by way of contrast, does not require a subjective appreciation on HMF's part that immersing the child in the water was unsafe (see R v Lavender [2005] HCA 37).
24 A significant body of evidence was put before the Court to assist in the resolution of this issue. The following summary of that evidence may be conveniently divided into three chronological stages. Firstly, the Department of Community Services' supervision of HMF between 24 February 2003 and 1 July 2003. Secondly, HMF's treatment of the child in the days immediately preceding 15 October 2003 and up until the child's bath at about 9 pm that day. Thirdly, HMF's behaviour after leaving the unit in Therry Street up to and including the morning of 16 October 2003.
25 In addition to these categories of evidence, a number of psychiatric examinations of HMF in the days and weeks following her arrest bear upon her state of mind on 15 October 2003 and her capacity to function in a rational manner.
26 Dealing firstly with the supervision by the Department of Community Services, the department's records reveal that HMF was assigned a case worker seven days after the child's birth owing to a previous notification to the department relating to HMF's first child, who was no longer in her care. The case worker's file notes on the whole expressed no concerns with HMF's treatment of the child. It is recorded that HMF kept her appointments with paediatric registrars and Early Childhood Centres throughout the period of DOCS's supervision. The notes include references to "appropriate interaction between mother and child, confidence in coping with baby's needs, appropriate development of the baby and the baby's clean, well cared for condition". An assessment report of 11 September 2003 included the following:
"HMF had all the appropriate baby equipment needed to care for S and was attentive and appropriate with her during her home visits. She had a clear routine organised for S and appeared aware of her needs. HMF spoke of wanting to do the best she could for her daughter and said that she was so important to her that she would not jeopardise losing her by going back to her old lifestyle. HMF has engaged with services and demonstrates that she has the capability to care appropriately for S. HMF demonstrated insight into the needs for her own daughter and that is evident in her interaction and engagement with her daughter and the services involved."
27 Turning next to HMF's treatment of the child proximate to 15 October 2003, in the weeks before 15 October 2003 a friend of HMF's, Joanne Dineen, had visited the home and observed HMF and the child on various shopping trips. Ms Dineen's statement indicates that the unit was untidy, dirty and chaotic and that HMF did not appear to be coping with the baby's fretful behaviour. The child was often crying and occasionally bruised in the facial region. Ms Dineen stated, "Sometimes HMF was really good with the baby and treated her well, looking like she loved the baby. This only looked like when the baby wasn't crying...".
28 On the morning of 15 October 2003 Ms Dineen saw HMF and the baby. The child was clean and happy. At 3 pm that day HMF appeared to Ms Dineen to be under the influence of drugs and that impression was reinforced at about 7 to 7.30 pm when Ms Dineen saw HMF at Burwood Plaza Woolworths Store. HMF appeared upset and distressed. At about that time HMF had had an argument with Woolworths' employees over a request by the staff to examine the pram. The baby appeared to be sleeping.
29 Following this incident HMF went to Mr Turchino's mother's home where she had dinner. The child was observed to be asleep and was still asleep when HMF and Mr Turchino left the premises.
30 At about 9 to 9.30 pm the child's screaming and crying was heard by a number of neighbours. One of these neighbours told police that she heard a female voice yelling loudly, "I fucking know what I'm doing. I've done this before". A male voice was heard to say, "Calm down". Later that evening the same neighbour heard a hysterical female voice, louder than before.
31 Before passing to consider the events following HMF's departure from the unit it is pertinent to note that there is no compelling objective evidence to this point which is capable of proving to the requisite standard that HMF was intentionally abusing the child in any way. It would appear that after the Department of Community Services terminated its supervision in early July HMF was unable to maintain the same standard of care for the child unassisted by regular intervention. Ms Dineen's observation of the condition of the unit and the child's bruises are consistent with less than satisfactory hygienic standards and minor injuries sustained by knocks and perhaps rough handling. By October the child was eight months old and more than likely rolling over and sitting up. Nothing in the evidence thus far demonstrates intentional infliction of harm.
32 Turning then to HMF's behaviour after leaving the unit, I do not propose to repeat the events already described in the statement of facts. However some aspects of those events provide insight into HMF's state of mind.
33 It is clear that HMF was intent upon obtaining some sort of drug for herself in the hours leading up to her conversation with police. Accepting that she was aware that the baby had been scalded at the time of the bathing and thereafter appeared to be sleeping - that is, according to HMF - and that Mr Turchino was available to look after the child, HMF's departure from the unit, her search for drugs and her attempts at prostitution, all with the child in the pram, are not consistent with an appreciation on HMF's part of the gravity of the child's condition. That impression is reinforced by the conversation between HMF and the Triple O operator wherein HMF speaks of her daughter in the pram and the fact that she is on her way home from the child's grandmother's house.
34 The particulars of the conversation between HMF and the police at approximately 4 am on 16 October 2003 are of further relevance. When one of the police officers who were called to Therry Street asked HMF if he could look at the baby, having already ascertained that the baby was cold to the touch, HMF replied, "No, she is sleeping. I don't want to wake her. Leave her alone." When the ambulance arrived, despite HMF's refusal to hand over the baby to male officers, HMF immediately gave the child to a female ambulance officer.
35 At Auburn Police Station at about 5 to 5.30 am HMF had the following conversation with police:
"I told them that I gave my baby a bath this morning and she got red dye all over her. I don't know how she got the red dye on her. I tried to wash it off but it wouldn't come off. As soon as my daughter turns five I am going to kill myself. It is my flesh and blood. I was going to call the ambulance. As soon as she turns five, no more daddy, no more mummy. I just want to die. It won't be long. I don't know where my daughter is. I don't care. I am going to see her. They don't know how to look after my child."
36 Later that day HMF spoke with Detective Evans at Auburn Police Station.
She said: "I need to speak with Dominico." I said - that is referring to Detective Evans - "What has happened?" HMF said, "I was getting harassed by some guys in the shop above. I rang the cops and they just arrested me at the front of my house. They took S from me."