R v Donna DEAVES

Facts 5The facts, including facts not strictly relevant to the immediate offence, can be briefly stated. Those facts are agreed for the purposes of these proceedings. 6Essentially, seemingly for the purpose of discipline, the deceased was required to run laps of the lounge room, hit with objects, including an electric cord, and forced to stand in one place for extended periods. She was not the only child of the offender punished in that way. However, the deceased was under three years of age at the time that these "punishments" were inflicted. 7It is not suggested, in these proceedings, that the offender inflicted these "punishments". 8Nevertheless, by 19 July 2011, the bruising from which the deceased suffered was so significant that the deceased was kept home from day care in order to prevent the abuse being reported. The deceased did not again attend day care. 9On 25 July 2011, while out, the deceased complained that her legs were tired and she could no longer walk. The deceased was taken by the hand, lifted from the ground and struck. This caused the deceased to fly through the air, and land on the ground approximately two metres from where she was thrown. The deceased held out her arms and said, "Pick me up; pick me up". She was not picked up. 10Instead, she was sworn at and dragged along the street. These events occurred in a public street. 11On 25 August 2011, the deceased was required to run laps of the living room, which she was unable to complete due, on the facts presented to the Court, to exhaustion. She was hit with a hand while the offender was sitting on the lounge and able to observe this event. The deceased was hit on the head, back and backside. The deceased was dragged across the lounge room floor while being kicked in the backside. The offender, on the facts presented to the Court, sought to intervene to defer "the punishment". 12The striking of the deceased ceased and she was required, instead, to run more laps of the lounge room. During the course of this "punishment" she wet herself. At that point she was struck with an electric cord and hit numerous times in quick succession across the back and the legs for about three to four minutes. 13The deceased was taken to the bathroom and put in a cold shower. She was spluttering and crying. The offender took the deceased's siblings to the kitchen and returned to the bathroom, where she heard what, according to the facts before the Court, was the deceased's head hitting the glass of the shower. She heard that twice before she actually arrived at the bathroom. The offender heard the deceased screaming, "No, no, no". 14When the offender arrived at the bathroom, the deceased was being held by her wet hair. Her head was banged into the shower wall. Her mouth was bloody. The offender sought to intervene to stop the deceased being hit further. 15The deceased had the front of her head slammed into the shower screen; her body was flailing. Her body was shaking. 16The deceased was taken to the toilet and held, by her feet, with her head above the bowl. The deceased was naked, wet and shivering. The deceased looked as if she was falling asleep. The offender was told to wake her up. The deceased was grabbed and shaken and told to wake up. The offender noticed that something was "not right". The deceased fell to her knees and could not get up again. 17At that time, the deceased was lying on her stomach on the floor outside the bathroom. The deceased was then kicked in the lower back or backside, causing the deceased to slide across the wet floorboards, hitting the top of her head into the hall cupboards. This occurred twice. 18The offender was told to get the deceased dressed and to wake her up. On the facts before the Court in these proceedings, the offender suggested ringing an ambulance, at which time, the offender was slapped and told not to do that. Further, the offender was told that if she did, the ambulance officers and the police would be informed that the offender, Ms Deaves, occasioned the injuries to the deceased. 19The offender placed the deceased in a double stroller and put her in the offender's bedroom. The offender considered that the deceased was brain damaged due to the blows to her head, because she did not wake within a few hours. The offender stayed up watching the deceased until early morning. The deceased's breathing was intense and rattly. 20During the whole of Friday 26 August 2011, the deceased failed to regain consciousness. That morning, the offender took her other two children to deliver one of them to school and to make some purchases at a local shop. 21During the course of the day, people (family and friends) attended the house, but the deceased was hidden from them. 22In the early hours of Saturday 27 August 2011, Ms Deaves woke to use the bathroom and heard gurgling sounds coming from the deceased. The offender observed that the deceased was not breathing and that there was some vomit near her mouth, whereupon, at 4.03am, emergency services were contacted. At 4.08am an ambulance arrived. Police also attended. The deceased was conveyed to Wyong Hospital, where her death was confirmed. 23The offender was interviewed. Initially, the offender claimed that the deceased's injuries were from a number of falls from various objects. 24An autopsy was conducted on 28 August 2011. It found extensive bruising at various stages of healing to the deceased's head, torso, arms and legs. These were recent and historic bruises. The findings were that there was clear and unequivocal medical evidence of sustained physical violence of a non-accidental type, possibly up to several weeks before death. The deceased had previously been healthy, with no major medical issues. The direct cause of death was blunt force head trauma. 25On 27 September 2011, the offender gave police a comprehensive version of the events leading to the deceased's death. This version was consistent with witness accounts and other evidence gathered by police. As earlier stated, within a few weeks thereafter, the offender was arrested and charged. 26As was made clear by the Crown at the time that the plea was entered and accepted, the basis for the charge and offence of manslaughter does not relate to the early incidents of abuse. Nor does it relate to the occasioning of the injuries on 25 August 2011. 27Rather, the offence of manslaughter is based upon criminal negligence by Ms Deaves for failing to obtain medical assistance between the period immediately after the beating on 25 August 2011 and the time of death on 27 August 2011. 28The autopsy, while confirming that the cause of death was the traumatic head injuries as described earlier, also expressed the view that the deceased may well have survived if she had received prompt medical treatment and the report indicated that the greater the delay in seeking medical attention, the greater the chance was that the deceased would not survive. The failure to obtain medical treatment was a substantial cause of the death of the deceased. 29The events leading up to and including the beating on 25 August 2011 are not used by the Court to determine the objective seriousness of the offence. The offence itself relates solely to the failure to obtain medical assistance thereafter. 30Obviously, in the foregoing, there is an acceptance that there was a duty reposed in Ms Deaves, the deceased's mother, to obtain medical assistance.

Subjective circumstances 31The offender, Donna Deaves, is 29 years of age. She has given birth to four children, two of them older than the deceased and one of them younger. She was pregnant with the fourth child at the time of the commission of this offence. She gave birth in custody and the child was immediately removed from her care. All three surviving children are in foster care. 32On the material before the Court in these proceedings, there is no evidence that the offender has ever been personally violent towards any of her children. Indeed, I accept the evidence of Ms Deaves on this issue and find, on the balance of probability, that Ms Deaves has never occasioned violence toward any of her children. 33The Court has the benefit of a psychiatric report. Dr Olav Nielssen examined Ms Deaves on 11 September 2013 and reported on the same day. This was the day prior to the sentence proceedings. At that time Ms Deaves had been in custody for almost two years. 34Ms Deaves is held in a high security protection wing, the location of which is confidential and is protected under a witness protection program. 35Ms Deaves does not use drugs or alcohol. She has a family history of mental illness but has not, in the past, been adequately diagnosed. 36Ms Deaves experienced a range of traumas during her upbringing, including harassment by drug using neighbours in public housing; sexual abuse by her older half-brother at the age of seven; bullying at school; the separation of her parents; and attacks on her family home that culminated in the house being set on fire. This last mentioned event occurred when Ms Deaves was 17 years of age. 37Ms Deaves reported a suicide attempt after being raped at the age of 14. She was intoxicated at the time that the rape occurred. She suffered as a victim of another sexual assault at the age of 16. 38Ms Deaves was in contact with counsellors as a juvenile, after problems at school, and there were a number of attempts to assess her difficulties. Ms Deaves has been variously described as having borderline personality disorder, posttraumatic stress disorder (PTSD) and attention deficit hyperactive disorder. These were historical assessments that were reiterated by the offender during the course of her interview with Dr Nielssen. 39She had an eating disorder as a teenager, which has returned whilst she has been in custody. Ms Deaves denies ever experiencing auditory hallucinations, a belief that she can communicate by thoughts, or any of the common persecutory beliefs, and thereby denies ever experiencing symptoms that are typical of psychotic illnesses. 40Ms Deaves recites that she has been severely bashed over an extended period and on a number of occasions. 41As earlier stated, Ms Deaves does not have a current drug or alcohol abuse issue. Nevertheless, she abused alcohol in her early teenage years, which she maintains led to her being sexually assaulted at the age of 14. She has also experimented with cannabis, but did not like it. 42Other reports are available from which Dr Nielssen also obtained relevant facts associated with Ms Deaves' personal history. Ms Deaves' father is Aboriginal and her parents separated when she was seven years of age. It seems, although it is difficult to establish, that her father was physically violent towards her mother. 43Ms Deaves was involved in a number of relationships up to three years in duration. The father of her middle two children, including the deceased, is of Columbian heritage. Each of Ms Deaves' relationships has involved domestic violence against her, and, it seems, some of them against her children. 44Ms Deaves has never held paid employment and has a criminal history involving petty theft, break and enter, a malicious wounding and malicious damage to property. She has never previously been in custody, which I take into account in her favour, as warranting some, albeit limited, leniency. Her criminal history also involves resistance of police officer and the use of offensive language. Nevertheless, as earlier stated, there is no evidence to suggest that Ms Deaves has ever been abusive towards her children, including the deceased. 45Her historical diagnoses include posttraumatic stress disorder, chronic adjustment disorder with depressed mood and eating disorder. 46Dr Nielssen examined and tested Ms Deaves. He concluded that she did not appear especially depressed and her emotional state, to the extent that it was noteworthy, seemed detached. Her only emotional response was when she was speaking about the death of the deceased. Ms Deaves was correctly oriented in time and with recent events. Her attention and concentration was unimpaired and her intelligence seemed to be within the normal range assessed by her use of vocabulary, reported literacy and reasoning ability. 47Dr Nielssen was inconclusive in his diagnosis, but opined that her psychiatric issues arose from a personality disorder rather than posttraumatic stress disorder; personality disorder being a more complete explanation for Ms Deaves' presentation. 48The personality disorder may arise from an inherited vulnerability to mood disorder, the experience of a range of trauma in both childhood and adolescence, including exposure to violence, sexual abuse, homelessness and emotional neglect. 49Dr Nielssen said: "The diagnosis of personality disorder refers to the presence of pervasive maladaptive traits, and that diagnosis could only be confirmed after observing Ms Deaves over time in less stressful circumstances. However, the personality traits that were described in detail in the assessments conducted in 2005 had been evident from adolescence and offer some explanation for why Ms Deaves formed a relationship with an abusive partner and why she was so passive in her response to his mistreatment of her child." 50Dr Nielssen considered it difficult to offer an opinion as to Ms Deaves' prognosis or treatment and, understandably, referred to the probability that her current offence would preclude her from having care of her surviving children, but noted that it would not prevent Ms Deaves from having more children. 51Lastly, Dr Nielssen expressed the opinion that: "Ms Deaves has a range of psychological problems for which she would appear to require long term supportive counselling, as well as close supervision of her performance as the parent of any further children. Her family history of mental illness and the extensive trauma she has experienced during her upbringing suggest that she carries an increased risk of developing a severe form of depression at some stage in the future, for which she might require more intensive treatment." 52Other than the foregoing, the fact of her Aboriginal descent is not a factor in her early childhood, at least past the age of seven.

Manslaughter 53As indicated earlier, manslaughter is an unlawful killing. The difference between manslaughter and murder involves the intention of the offender at the time that the offence occurs. 54It is difficult to envisage a duty higher than the one society imposes on a parent towards her or his child. Where, as here, the child is an infant, unable as a matter of practical and legal capacity to operate independently from her parent, that duty is at an even higher level. 55The crime of manslaughter on the basis of gross criminal negligence, in circumstances such as these, involves an omission, by Ms Deaves, that was a substantial cause of the death of the deceased, in circumstances where she owed a personal duty of care towards the deceased and failed to carry out that duty. 56The failure to carry out a duty is punishable where it can properly be characterised as "wicked" and deserving of punishment: R v Taktak (1988) 14 NSWLR 226; Burns v R [2012] HCA 35; (2012) 246 CLR 334. In the latter case, the High Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ), at [97], said: "[97] Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. ..." 57There is however a difference between the duty reposed in a medical practitioner and that reposed in a parent. There is a heavy and enduring responsibility that rests upon a parent to care for a child who is otherwise utterly defenceless. 58The duty that is owed and from which criminal responsibility arises is present in the relationship between any parent and a child under the age of 18. Where, as here, the child is wholly dependent upon the parent and incapable, even in the most basic manner, to fend for herself, the culpability involved in breaching the duty of care is serious and the responsibility that rests upon such a parent in those circumstances is a heavy one. 59That factor is, primarily, a factor to be taken into account in determining the criminal culpability of the offender from an objective perspective. It cannot, as well, form the basis for an aggravation of the offence under s 21A(2)(l) of the Sentencing Act. That the provisions of s 21A(2)(l) of the Sentencing Act do not apply to aggravate the offence does not detract from the significance of such a factor in relation to the assessment of objective seriousness of the offence committed. 60While the offender, Ms Deaves, initially gave police a version of events that was exculpatory of her involvement in the death of her daughter and exculpatory of any other person, the later interview, given after the arrest and detaining of the other person involved, was a significant incriminating factor in the charges against her and in the charges laid against another. 61I take into account her plea of guilty. Even though it was a plea entered far later than the earliest opportunity, it has a utilitarian value. That value is at or below the mid range of the discount ordinarily assessed, and is taken into account in the determination of the ultimate sentence, pursuant to the terms of s 22 of the Sentencing Act. 62Further, pursuant to the terms of s 23 of the Sentencing Act, I impose a lesser penalty than I would otherwise impose because of the assistance that Ms Deaves is to give, and has undertaken to give, in the prosecution of another. 63In accordance with the principles prescribed by s 23, I take into account the significance and usefulness of the assistance offered by Ms Deaves; the fact that she is willing to and has undertaken to give evidence against another in relation to the death of her daughter; the completeness and reliability of information provided; its timeliness; the fact that no other benefit (other than the possible reduction in the sentence now being imposed) is gained by Ms Deaves in giving that assistance or providing that undertaking; the fact that the conditions under which Ms Deaves will serve her custody will be more onerous as a consequence of the assistance she is now giving; the risk of injury to her as a result of the assistance; and also the fact that, on the other hand, her assistance relates to the same set of circumstances which give rise to the offence for which she is to be sentenced. 64The Court of Criminal Appeal has provided some guidance to the level of discount that may be granted for the kind of assistance offered by a person in the position of Ms Deaves. In circumstances where the custodial conditions imposed upon Ms Deaves will be more onerous, the Court of Criminal Appeal has indicated that, unless very exceptional circumstances are disclosed, a discount of more than 50 per cent should not be applied for the combined effect of the plea of guilty and assistance: see FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 at [21], citing York v R [2005] HCA 60; (2005) 225 CLR 466; R v Gallagher (1991) 23 NSWLR 220; R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474; R v M [2005] NSWCCA 224; SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249; R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151. 65The "percentage discount" is not a fixed tariff, but operates as a guide in assessing an appropriate range. The discount operates for both the plea of guilty and the assistance. Bearing in mind all of the factors to which I have referred, and Ms Deaves' evidence and demeanour in Court, I assess that a discount of thirty-three and one-third per cent (i.e. one-third) should apply, provided that the sentence does not fall below that which is otherwise appropriate. I also assess the value of future assistance to be 20 per cent. I take account of the principle that, even after discount, the sentence must be appropriate for the offence and offender. 66The difficulty, in a case such as this, is assessing objective culpability. I take into account that, on the Crown case, there is no intention to inflict injury, even of a minor kind. 67I also take account of the circumstances, on the facts agreed before the Court, of Ms Deaves' initial inclination to contact emergency services and the reaction to it. I take that into account to the credit of the offender. 68Nevertheless, this is an extremely serious offence, the nature of which has been described in full. Rightly, society regards this neglect as heinous and worthy of punishment. A sentence other than full time custody would be inappropriate. 69I have taken into account the range of sentences that have been imposed for offences of like kind. It has often been said, by me and others, that manslaughter involves the greatest range of circumstances. 70Sentencing statistics, in the circumstances of manslaughter, are of limited utility. The range of culpability and the range of circumstances that give rise to manslaughter are so varied that any judicial officer must be extremely careful in applying, or relying on, such statistics to assess a range for the offence in question. Circumstances where a parent is criminally responsible for the death of her or his child do not, thankfully, occur so frequently to make it possible to deduce a pattern of sentencing from past cases. 71I have, notwithstanding the limited reliability of statistics in this area, had regard to the cases to which the Crown has referred me. The range is, even in relation to parents who are criminally responsible for the killing of their children, extremely wide. Yet none seem adequately to meet these circumstances. 72Some of those cases relate to misguided and irrational belief in the power of God or religion, in home remedies or in sheer ignorance. The offence becomes a particularly serious one where, as here, it relates to an injury inflicted by another, in circumstances where the parent realises the seriousness of the injury that has been inflicted, and when the age and helplessness of the child are considered. 73As stated, I take account of the circumstance that there is not alleged to be any intention to injure. However, I do not consider that that, in these limited circumstances, is the end of the story. This offence is much more serious than a number that would have been occasioned by an intention to injure or by some other unlawful act. I consider that the objective seriousness of the offence is not in the worst category, requiring the maximum sentence, but it is well above the mid range, and approaching the worst category. 74I take into account the subjective circumstances to which I have referred. In particular, I take into account the psychiatric issues seemingly caused by the early abuse of Ms Deaves, which, it seems, has given rise to her willingness to participate in an abusive relationship. I accept, on the balance of probabilities, the diagnosis of personality disorder probably arising from trauma. It is notorious that childhood abuse has, without significant treatment, life-long effects on self-esteem, self-worth and disempowerment usually as a result of consequential personality disorder or PTSD. 75Nevertheless, a point arises where society must insist upon a parent taking responsibility for a child, notwithstanding the personal psychiatric issues with which that parent is faced. There is no doubt, in my mind, that Ms Deaves felt helpless, in part because of the psychiatric issues to which I have referred. Nevertheless, she had the courage to stand up to abuse in an earlier relationship and should have had the courage to take her child to the hospital. 76I accept that, with the plea of guilty, and in the evidence given in the Court, Ms Deaves has displayed a degree of remorse. I accept that the expression of remorse in this Court tended to centre on the effect of the offence on Ms Deaves herself. However, I consider that that may have been as much a failure of language and expression as it was a true assessment of her feelings. Nevertheless, her explanations for the reasons for her failure to seek medical assistance were inconsistent. 77Notwithstanding that view as to Ms Deaves' remorse, I do not consider her remorse to be at the highest level, because of its expression in terms of the effect on Ms Deaves herself, rather than on the helpless child who depended on her. She has prospects for rehabilitation, which would rise to a reasonable level if her personality disorder were properly treated. General and specific deterrence are necessary, but not overly significant, factors. 78A death such as this is tragic. Society views the taking of human life as a most serious offence. 79I accept that the effect of this on the other family of the deceased is horrific. It is an event which would be difficult to overcome or forget. 80Sentencing is an intuitive process. Its objects are set out in s 3A of the Sentencing Act. Sentencing involves the resolution of conflicting goals: protection of society; deterrence of the offender and of others who might be tempted to offend; retribution; and, reform. These goals overlap and cannot be considered in isolation from each other; often they point in different directions: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476. Sentencing is, and must remain, an intuitive process. 81The starting point is the assessment of the gravity of the objective circumstances of the case and an understanding that the offence involves the taking of a human life, wholly dependent upon the offender. As earlier stated, this is a case that approaches the worst category. The maximum sentence imposed by the legislature is 25 years' imprisonment. There is no standard non-parole period. 82In all of the circumstances, and before the discount for the plea of guilty and assistance to which reference has been made, I consider an appropriate starting point, taking into account both objective and subjective circumstances, to be 18 years' imprisonment. I do not find special circumstances and consider the time during which Ms Deaves is eligible for parole to be sufficient. 83One other matter should be the subject of comment, although it bears no significance in the determination of the sentence to be imposed. Between 19 July 2011 and 25 July 2011, the house in which the deceased was then living, and in which she sustained serious and visible injuries, was visited by government officers. 84This Court regularly deals with the determination of the reasonableness or otherwise of the conduct of government officers in the care of children thought to be at risk. Other courts deal daily with disputes as to the custody of children. Removing a child from a parent or parents is never an easy task and I do not underestimate the difficulty that attends decision-making where the best interests of the child may be productive of competing considerations. 85The Court is also aware of the extent to which schools, pre-schools and day care centres are regulated for health and safety concerns with extraordinary particularity, sometimes by the same departments that have responsibility for overseeing the safety of children in their parents' homes. 86There appears to me however to be a dangerous imbalance between the allocation of scarce enough resources that are committed to ensuring compliance with space considerations in community based child care centres, while children who are exposed to grave injury in their own homes are not identified and steps taken to address the risk. 87The foregoing does not diminish the criminal liability of those who inflict injury on children or those who fail to ensure that appropriate medical treatment is afforded children who are injured in this way. Nor is the foregoing intended as a criticism of any particular officer of the government and certainly not of any Minister of Government. It is, perhaps, the result of human nature that it is easier to deal with responsible people than it is to put resources into dealing with irresponsible people. However, it does warrant emphasising that the death of this child could have been avoided by the intervention of departmental officers or by family members. 88What remains is the unavoidable reality that medical attention was not provided to the injured child and criminal responsibility must be attributed in accordance with the law. Nevertheless, responsibility must be taken in part more broadly by society, without diminishing the level of responsibility of those most obviously responsible for the acts or omissions that were a substantial cause of the death of this child.

Sentence 89Donna Deaves, please rise. 90You are convicted of manslaughter in that you did unlawfully kill your daughter, Tanilla Warrick-Deaves, on or about 27 August 2011 in that you did not seek medical assistance for her, knowing her to be in need of that assistance. I sentence you to imprisonment for a non-parole period of 9 years, commencing on the date of your arrest, 18 October 2011, and concluding on 17 October 2020, and a balance of term being a further 3 years, expiring on 17 October 2023. 91You are first eligible for release on 17 October 2020.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2014