R v Howard

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Thursday 31 August 2000 070055/98 REGINA v PETER ANDREW HOWARD

1 HIS HONOUR: On the presentation of an indictment before this Court on 22 May 2000, Peter Andrew Howard pleaded guilty to the crime of manslaughter. He is convicted of that crime and it is my task to pass sentence. I received evidence and heard submissions on sentence on 11 August 2000. 2 The deceased, Adam Holbrough, was born on 5 January 1996, so he was only eight months old when he died. In September 1996 his mother, Kolene Holbrough, was living in a de facto relationship with the prisoner, who was in effect Adam's de facto stepfather. 3 On the morning of 26 September 1996 Adam was left at home in the care of the prisoner whilst his mother was out at the shops. However, at about 9.30 am the prisoner summoned an ambulance to the infant's home and the child was found to have stopped breathing and to have no pulse. The ambulance officers endeavoured to resuscitate Adam and he was taken to Bathurst Base Hospital where resuscitation efforts were continued. The patient was then transferred to Westmead Children's Hospital and admitted to the intensive care unit where he remained in a critical condition until life was pronounced extinct on 27 September 1996. 4 The post mortem examination was conducted by Dr Ellis of the Department of Forensic Medicine. He found bleeding in two layers over the brain, together with significant bleeding and some damage in both eyes. There was also some bruising to which I shall later refer, but I observe that the doctor did not consider that that bruising contributed directly to death. Death, in the opinion of Dr Ellis, was due to the effect of injury to the head and, absent significant impact trauma, the doctor concluded that this type of traumatic injury "was most probably caused by severe shaking of the infant with repeated bending forwards and backwards of the head". 5 There is evidence from a number of sources of admissions made by the prisoner concerning the manner in which the injuries were inflicted. The various accounts given by the prisoner as to how and in what circumstances he caused the fatal injuries were as follows:

(i) The first account appears to have been that which the prisoner gave to the child's mother at Westmead Hospital. He told her that he left the child lying down having a bottle and went to the toilet, that he heard the child coughing and came back to him to find his back arched and his eyes rolling backwards. The prisoner continued that he shook the child and tried to do CPR. He shook him a little bit the first time, then harder a second time, and the third time really hard.

(ii) The next account appears to have been that to Dr Schell who had the care of the child at Westmead. Dr Schell reported that the prisoner had told him that, having given Adam a biscuit and a bottle of cordial, the prisoner went to the bathroom and whilst there he heard coughing. Upon returning to the room where Adam was lying on the floor, he said that the infant was vomiting and that he then shook the infant three times in order to get him to respond. The last shaking was more vigorous.

(iii) In the first ERISP conducted on 27 September 1996 the prisoner told the police that he shook the child three times. He told the police that he was holding the child under the armpits. The first time he said was just enough to wake him up. The second time the child's head went back and forth, and the third time he said he shook him hard, and when his head was flung back and came forward he coughed and his eyes opened.

(iv) There was a further ERISP on 30 January 1997 after Dr Ellis had furnished his post mortem report. Again in that interview he told the police that when he came into the room he saw Adam on the floor with vomit coming out of his nose and mouth. He said that he picked him up and shook him but had no response. He shook him harder and then the third time he shook him and he responded: "His eyes opened up and then he threw up" (answer to question 20). I set out questions 21 and 22 and the answers: "Q21 Are you able to indicate to us how hard you shook Adam on the first occasion? A The first occasion was just to wake someone up, you know, just, I had him under his arms and I shook him and he was limp as. Q22 When you say you had him under your arms, did you actually pick the child up? A. Yeah, I had, well, at first I had him, my hand under his head and I was holding him like that. I was like, Adam, Adam and nothing and I just, I don't know, I panicked, I didn't know what to do. I shook him three times and like I told the police at Parramatta and the people at the hospital, by the third time I shook him, shook him very hard and that's when he threw up. His eyes opened and he responded to me, he started, his heart started again." Having told the police that he shook Adam three or four times on the first occasion, he said that he probably shook the child three or four times again on the second occasion and that as he shook Adam he was holding him under his armpits. The child's head was unsupported. In response to question 33 the prisoner said: "Well, his head, like by the, by the third time, you know, he's, I shook him and his head went back and forth a few times and then as it swung back that's when his eyes opened and he just shot this white and greeney stuff…"

The prisoner was later asked: "Q37 Are you aware that it's inappropriate to shake a child of that age in a violent manner? A. Yeah, but I, I, I was, I didn't know what to do, you know, I thought, you know, and by the third time I thought I did the right thing, 'cause his eyes opened, he spewed, you know, I thought he was coming to, you know." 6 I am satisfied beyond reasonable doubt that the prisoner caused the child's death by shaking him in a manner that was entirely inappropriate having regard to Adam's infancy. The prisoner's plea of guilty acknowledges this to have been the case and Mr Zahra, who appeared for the prisoner, acknowledged that the plea was entered in recognition of the commission of the crime of manslaughter by unlawful and dangerous act. I am satisfied beyond reasonable doubt that what the prisoner did was indeed dangerous, viewing his conduct objectively. Moreover, the prisoner, by his own admission to the police, to which I have already referred, appreciated that his behaviour was inappropriate. 7 The offence charged in the indictment under s 24 of the Crimes Act is in a category for which the maximum penalty that may be imposed is imprisonment for twenty-five years. However, the range of circumstances in which the crime of manslaughter may be committed is wide-ranging and, hence, sentencing statistics are not very helpful in seeking to determine what is an appropriate penalty for a particular crime of manslaughter. Reference to penalties imposed in other cases for the crime of manslaughter understandably reveals a very wide range of sentences. 8 There is no suggestion of premeditation here. Nevertheless the prisoner has caused the death of a young child by an unlawful and dangerous act, and that underlies the objective gravity of what the prisoner has done. 9 The prisoner was born on 26 May 1974, so that he is now twenty-six years old. He has a criminal record which began as a juvenile and includes many convictions as an adult for offences of dishonesty, including offences of break enter and steal. However, of particular relevance in the present context is a conviction in the Local Court at Katoomba in 1994 for assault occasioning actual bodily harm. The prisoner was then convicted of having occasioned actual bodily harm to another child named Jayde Cover. That child was harmed in June 1993 when she was only seven weeks old. The prisoner was the father of Jayde and Jayde's mother was an earlier de facto wife. 10 The facts sheet and statements from Jayde's mother and her grandmother form part of the evidence placed before me, together with a statement from Dr Hart, who had occasion to treat Jayde. The facts sheet records the following: "On the morning of the 15/6/93, the child was showered by mother and then dressed. The child's mother then left the child with the Defendant whilst she travelled to Katoomba to attend a Mothers' Meeting. The Defendant contacted the mother at the Meeting, by phone, informing her the child appeared to be in some form of distress. The Defendant informed the mother that he had left the child alone in the house for a few minutes alone and when he returned he thought the child had either just had a 'fit' or was going to have a 'fit'. When the child's mother returned home at 1pm, she saw bruising to the child's right eye and noticed that the child appeared somewhat pale and tense. On the 16/6/93, the child was seen by a Doctor and then taken to the Blue Mountains District Hospital, Katoomba, where she was examined by Dr Hart. At this time, the child has been examined on a number of occasions and her injuries have been noted as bleeding behind the retina of the right eye." 11 Dr Hart's statement disclosed that when Jayde was admitted to hospital bilateral extensive retinal haemorrhages were found and he opined that retinal haemorrhages "are usually a consequence of serious trauma to the brain such as in repetitive violent shaking or direct head trauma." Dr Hart was of the opinion that the retinal haemorrhages with which the child had presented at hospital were due to the shaken infant syndrome and these haemorrhages were convulsions and transient neurological problems. Fortunately Dr Hart was able to report by November 1993 that Jayde was thriving, alert and interested. 12 The prisoner did not admit to having shaken Jayde over-vigorously and indeed he pleaded not guilty to the charges at Katoomba Court. However, whilst he appeared at court on the first day of the hearing, he did not appear on the date appointed for the resumption of the hearing and the hearing was completed in his absence. As recently as his assessment by Dr Lucas, the prisoner was denying the commission of the offences for which he was convicted at Katoomba Local Court, but the convictions stand and what does emerge from the material placed before me was that the inappropriate handling of Jayde had caused retinal haemorrhage and the associated problems identified by Dr Hart. 13 The prisoner is not, of course, to be further punished now for any earlier offence for which punishment has already been imposed. However, the significance of what occurred in 1993, in my assessment, is that the prisoner's previous experience with Jayde ought to have heightened his awareness as to the dangers associated with rough handling of an infant, and in particular with shaking a child. 14 There is material that discloses that Jayde bore marks of physical abuse other than those to which I have already adverted in the context of referring to Dr Hart's report, and that these marks included scratches on her fingers and bruising of her leg. However, I am unable to find that there was a pattern of abuse by the prisoner of his daughter, and I do not do so. 15 Then, so far as Adam is concerned, I note that on post mortem examination Dr Ellis found scattered small bruises on the left ear, the chest, the neck and the limbs. In addition, Adam's mother referred in her statement to noticing a lump on the back of Adam's head three weeks before he died. When asked about this injury, the prisoner explained it by saying that he tripped as he was carrying Adam and dropped him. There was another occasion when the prisoner's de facto wife said that she saw bruising about Adam's eyes, his nose and inside both ears. 16 That evidence, indicative of trauma not directly associated with violent shaking, leaves room for suspicion that the prisoner may have ill-treated Adam before 26 September 1996, but no such earlier ill-treatment has been proved, and in my approach to my sentencing task I must disregard such suspicion. The prisoner must be sentenced for the crime charged, but in addressing my task I do bear in mind the earlier offence resulting in conviction at Katoomba Local Court, and I bear that earlier matter in mind on the basis I have already stated. 17 Dr Lucas assessed the prisoner twice, namely on 14 May 2000 and 29 June 2000 and he prepared a report dated 21 July 2000 which was tendered by Mr Zahra. This report deals extensively with the prisoner's life history. I shall not record the contents of the doctor's report exhaustively in these remarks, but, of course, I have considered what Dr Lucas has written closely. The prisoner told the doctor that his parents separated when he was a baby and that he lived with his mother and older sister in Katoomba until he was twelve, when he went to join his father and stepmother in Pennsylvania before returning to Australia after he finished his secondary schooling. 18 It does not appear that the prisoner ever settled into any steady employment and he began to drink quite heavily in 1990 and he used drugs such as marijuana and amphetamines. 19 Following assessment, Dr Lucas concluded that the prisoner suffers from no major psychiatric disorder and has specifically excluded schizophrenia, mood disorder or personality disorder. He pointed to a number of psycho-social factors as throwing some light upon the offence committed, namely: "His disruptive upbringing, emotional deprivation, a lack of family stability, stability in place of residence and physical abuse are all important. Because of this Mr Howard has had great difficulty in managing relationships and anger…" 20 The prisoner gave Dr Lucas a further description of the events that led to the death of Adam. As Mr Zahra acknowledged in his submissions, the prisoner admitted responsibility more fully to the doctor than he had earlier done in the police interviews. He said that on the morning of 26 September 1996 he quarrelled with Ms Holbrough and this appeared to unsettled Adam, who was teething at the time. When his mother left home, Adam became "very vocal" and "very upset". To quieten him, the prisoner gave him a biscuit and cordial, but he did not stop and the prisoner said "that's when I shook him", adding that he stopped crying and that he was stunned with what he had done. The account recorded by Dr Lucas continues: "'He started crying again. I know I couldn't leave the house or him so I put walls between us… I went down the hall and sat on the bed and had a cigarette.' He said that basically he had lost it at that time, 'I couldn't get over what I'd done'. While down the hall he realised that Adam had gone quiet and became worried and walked to the loungeroom. He found Adam 'all arched back with vomit coming out of his mouth and nose'. He was horrified. He then did what he could in the way of resuscitation. He tried to get stuff out of Adam's throat and called for an ambulance. Adam would not respond. He patted his back, called him to open his eyes but they remained shut and there was not much breathing. He was gagging. Ambulance staff appeared to have tried to aspire fluid and while they were working on him he had a couple of cardiac arrests. Mr Howard held his hand praying that he would come around." 21 The above account, of course, differs from those which I recorded earlier when reviewing the evidence tendered by the Crown. The prisoner himself gave no evidence before me. 22 It is evident from a reading of Dr Lucas' report that the prisoner has difficulty in controlling his temper and I have no doubt that he was having such difficulty when he shook Adam so violently as to cause the injuries which led to his death. 23 It is to the prisoner's credit that he appears now to have recognised his temper problems. He has been seeing a psychologist in the prison system on a voluntary basis and a short letter from Ms Shaw discloses that she has seen him twenty-four times since 21 December 1999 and Ms Shaw has reported that the prisoner "has maintained a very high level of motivation throughout this period. He has responded well and been very open to a stable therapeutic relationship." 24 It seems to me, reflecting upon the report of Dr Lucas and the report from Ms Shaw, that the prisoner's prospects of rehabilitation are reasonable. I am prepared to accept, as Dr Lucas has reported, that the prisoner deeply regrets Adam's death and accepts responsibility for what he has done. 25 The prisoner is entitled to have taken into account in his favour the fact that he pleaded guilty to this offence in May this year. He had been committed for trial, charged with manslaughter, and a trial date was fixed for 12 February 1998 in the District Court. That date, however, was vacated because a Crown witness was not available. Subsequently on 27 May 1998 the Director of Public Prosecutions directed an ex officio indictment for murder and the venue for the hearing of this charge was changed to the Supreme Court in Sydney. The prisoner was refused bail during the period from 10 May 1998 to 15 June 1998. He was then admitted to conditional bail but breached the conditions of that bail. He did not appear for arraignment in this court on 23 March 1999 and he was eventually arrested on a bench warrant on 22 August 1999, since which time he has been in custody. I propose to backdate the sentence to 22 August 1999 and further to take into account the earlier period of one month five days that the prisoner spent in custody for this offence. 26 In addressing the requirement that the prisoner be credited for his plea of guilty, I bear in mind that that plea reflects contrition and I have regard to the utilitarian value of the plea to the criminal justice system. I heed the timing of the plea as earlier recorded. I add that on 1 October 1999 the prisoner's trial was fixed to commence at Sydney on 22 May 2000 and the court was given the estimate that the trial would occupy four to six weeks. At that time the prisoner was facing trial for murder and I am prepared to accept that the prisoner acted promptly to plead guilty to the lesser charge of manslaughter when the opportunity to do so was presented this year, although not apparently whilst awaiting trial in the District Court in 1998. In my assessment, the Crown case was a strong one but nevertheless considerable court time and the expense associated with the trial has been saved. Further, the inconvenience and distress to witnesses of having to give evidence has been avoided and those who would have served as jurors have been able to be occupied otherwise. Mindful of the recent guideline decision of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309, I quantify the discount element for the plea of guilty in all the circumstances as approximately ten percent. 27 The prisoner has been in protective custody and, indeed, since December last year he has been in strict custody. This is the sort of case in which protection is commonly required. That is a feature which would add to the burdensome nature of imprisonment in the prisoner's case, and I take that into account. 28 I referred earlier to the absence of any clearly defined range of sentence for the crime of manslaughter. Counsel have been unable to take me to sentences imposed for crimes of the precise nature with which I am here concerned, but there are two decisions of the Court of Criminal Appeal to which I was referred and which I do find of some assistance in my present task. 29 In R v Vaughan (1991) 56 A Crim R 355 the accused pleaded guilty to the manslaughter of his five year old daughter. The accused reacted to the child crying by picking her up by the ankles and flinging her head first into a couch. This was repeated two or three times and the child ended up on the floor, losing consciousness. The accused revived the child but did not take her to hospital until late in the evening and the child died the following day. At first instance the accused was sentenced to a minimum term of two years five months and an additional term of nine months. On an appeal by the Crown, that sentence was quashed and a head sentence of five years was substituted. Lee CJ at CL, with whom the other members of the court agreed, said: "In my view at the very least, allowing for the subjective circumstances, the head sentence should have been one of five years, and even then I would say that that would be classed as a light sentence for this appalling conduct resulting in the death of the child." 30 Then in R v Ditfort (unreported, NSWCCA, 17 March 1992) it was the prisoner who was appealing against a sentence imposed. The head sentence was one of ten years with a minimum term of seven years six months. The prisoner caused the death of a two and a half year old child of his de facto wife. The day the death was caused the child was whingeing and the prisoner punched her in the stomach with his closed fist. He then hit her in the head with his closed fist and the child lost consciousness. The prisoner left the child without seeking medical assistance for her and fled to the north coast. 31 The appeal against sentence was dismissed. Hunt CJ at CL, with whose judgment the other members of the court agreed, considered the sentence imposed to be a high one but added: "It was within the judge's sentencing discretion - if at the top of the appropriate range." 32 Ditfort I find to be useful in the present circumstances because it does tend to indicate the top of an appropriate range for a case involving an unpremeditated assault causing the death of an infant in a domestic situation. Ditfort was a case in which there was a plea of guilty. I note that there was a period of five months spent in custody in addition to the head sentence, so that really the aggregate sentence in that case was one of ten years five months. 33 Returning to Vaughan, it is to be borne in mind since that was a Crown appeal the Court of Criminal Appeal did not necessarily set what the court considered there would have been the appropriate sentence at first instance. 34 No two cases are the same and the present case is distinguishable on the facts of course from both Vaughan and Ditfort. Objectively, the facts in this case are not as serious as those in Ditfort, but they are serious nevertheless. Whilst what the prisoner did was not premeditated, he acted notwithstanding the earlier experience he had had with his daughter Jayde. The prisoner did not shake the child once but some twelve times and did so without supporting his head. 35 I must, of course, set a sentence which, whilst heeding the subjective features relevant to this prisoner, nevertheless gives appropriate recognition to the objective gravity of this crime and which addresses considerations of denunciation and retribution. The protection of children is of fundamental importance to society. Infants are so vulnerable to ill treatment, and so dependent upon their carers for their safety and well being, that there is a special need in this type of case to deter not only the prisoner but others who might be tempted to offend in a similar way. The sentence I impose must reflect these factors. 36 Dr Lucas considers that when the prisoner returns to the community he should have a substantial period of supervision with counselling to assist in his rehabilitation and in the avoidance of drug abuse. I am mindful of that opinion in structuring the sentence I am about to impose. It seems to me that there are special circumstances that warrant a slight adjustment to the ratio set by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. I have concluded that the appropriate sentence in this case is one of seven years six months imprisonment, with a non parole period of five years six months. 37 Accordingly I pass sentence as follows: I sentence the prisoner to a term of imprisonment of seven years six months to date from 22 August 1999 and to expire on 21 February 2007. I fix a non parole period of five years six months and I therefore specify as the first date upon which the prisoner is to be eligible for release on parole 22 February 2005. **********

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