R v Howard

COUNSEL : P R Boulton (A) W G Dawe QC SOLICITORS : DJ Humphres S E O'Connor CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - manslaughter - death of child victim caused by shaking - whether 10% discount for plea of guilty outside appropriate range - whether insufficient allowance for periods spent in protective and strict custody - whether failure to take into account pre-sentence custody - error in not taking into account pre-sentence custody - sentence backdated accordingly LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 ss 44(2), 47(2),(3) Criminal Appeal Act 1912 s 6(3) DECISION : Leave to appeal granted; Sentence quashed; Sentenced in substitution for the original sentence to imprisonment for seven and a half years to date from 7 July 1999. A non parole period is set of 5 years 6 months from 7 July 1999 to expire on 6 January 2005. Earliest date on which eligible to be released on parole is 7 January 2005.

BEAZLEY JA WOOD CJ AT CL SPERLING J THURSDAY 23 AUGUST 2001

1 WOOD CJ AT CL: The applicant seeks leave to appeal against a sentence of seven and a half years, with a non parole period of five and a half years, imposed by Studdert J, following a plea of guilty to manslaughter. That sentence was imposed on 31 August 2000, and was backdated to commence from 22 August 1999, that being the date upon which the applicant was arrested, pursuant to a warrant, following breach of his bail conditions.

FACTS 2 The victim, Adam Holbrough, was the eight month old son of the applicant's partner. On the morning of 26 September 1996, Adam was left in the applicant's care while his mother went to the shops. At about 9.30am the applicant summonsed an ambulance to the home. The boy was found to have stopped breathing and to have no pulse. He was taken to Bathurst Hospital after being resuscitated and later transferred to Westmead Childrens Hospital. His life was pronounced extinct on the following day. Post mortem examination disclosed bleeding in two layers over the brain together with retinal haemorrhage, along with some bruising. Death was attributed to severe shaking of the infant with repeated bending forwards and backwards of the head. 3 The applicant gave various accounts to the child's mother, to a treating doctor, and to police, of the circumstances in which the infant came to suffer the fatal injuries. They were not all consistent, but in various ways they suggested that he had shaken the boy in a panic after finding him coughing or vomiting. The version of events which the applicant later gave to Dr Lucas was more incriminating in so far as he acknowledged that he had shaken the boy when he would not stop crying after his mother left the home. 4 The plea of guilty was based upon the applicant's acknowledgment that he had shaken the boy in a manner that was entirely inappropriate having regard to his infancy, in circumstances amounting to manslaughter by an unlawful and dangerous act. His Honour accepted that there was no suggestion of premeditation, and he expressly excluded from consideration the suspicion that other earlier injuries found at the post mortem examination, which appeared to have pre-dated 26 September, had been caused by the applicant. However, he did take into account, when assessing the objective criminality involved, the fact that the applicant had been convicted in 1994 in the Local Court, at Katoomba, of an assault occasioning actual bodily harm to his natural daughter, Jayde, when she was but seven weeks old. The injuries occasioned to this child were also consistent with the shaken baby syndrome. 5 This was taken into account, his Honour made clear, not by way of additionally punishing the applicant for the earlier offence, but upon the basis that this occurrence ought to have heightened the applicant's awareness as to the dangers associated with the rough handling of an infant, and in particular with shaking a child. 6 Upon the basis of Dr Lucas' report, his Honour found that the applicant had difficulty in controlling his temper and that it was in such a state that he shook Adam so violently as to cause the injuries which led to his death. 7 The applicant was twenty six years old when he appeared for sentence and had a criminal record which began as a juvenile and included many convictions for offences of dishonesty, including offences of break enter and steal. His parents had separated when he was a baby and he had then lived with his mother and sister in Katoomba until he was twelve. He then went to live with his father in Pennsylvania before returning to Australia to complete his secondary schooling. He had not entered into any steady employment and he began to drink heavily in 1990 and took up the use of marijuana and amphetamines. Dr. Lucas found that he did not suffer from any major psychiatric disorder, but suggested that his disruptive upbringing, his emotional deprivation and his lack of family stability were psycho-social factors that contributed to the offence, in so far as they had caused him difficulty in managing relationships and his temper. 8 It was to his credit, his Honour observed, that he appeared to have recognised his temper problems and had been seeing a psychologist whilst in prison. His prospects of rehabilitation were accepted as reasonable and he was found to have accepted responsibility for what he had done, and to be deeply regretful for it. 9 In sentencing the applicant, his Honour expressly stated his plea of guilty would be taken into account in his favour, and that the case would be treated as one in which the applicant had acted promptly to plead guilty to the lesser charge of manslaughter once the opportunity to do so was presented to him in early 2000. The position in that regard is a little complex, in that the applicant had been committed for trial on a charge of manslaughter in the District Court. A trial date was fixed for 12 February 1998, but the date was vacated through no fault of the applicant. On 27 May 1998, the Director of Public Prosecutions presented an ex-officio indictment for murder and the venue was changed to the Supreme Court. The applicant was refused bail from 10 May 1998 to 15 June 1998, when he was released to conditional bail. He did not appear for arraignment on 23 March 1999, and he was then arrested on the warrant previously mentioned. On 1 October 1999, a trial date was set for 22 May 2000, with an estimate of four to six weeks. This was an assessment which, on the face of the record and the likely issues, would appear to have been somewhat excessive. However, it appears to have been accepted by his Honour and it would be inappropriate for this Court to proceed on any other basis. 10 His Honour noted these circumstances, along with his assessment that the Crown case was a strong one. That assessment was clearly correct. As was accepted by Mr Boulten of counsel today, the plea was in truth an acceptance of the inevitable. It would have been inappropriate for his Honour to have linked the strength of the Crown case to the utilitarian value of the plea: see Lo (2001) NSW Court of Criminal Appeal, 271. There is, however, no reason to suppose that his Honour fell into error in that regard. In particular, his Honour found that considerable Court time and expense had been saved, and that the inconvenience and distress of witnesses and jurors had been avoided. Mindful of the guideline judgment in Thomson & Houlton, (2000) 49 NSWLR 383 a discount of "approximately 10%" was given for the plea. 11 His Honour also noted that the applicant had been in protection and also in strict custody and that it could be likely that he would have to serve his sentence on protection. This, it was accepted, would add to the burdensome nature of his imprisonment. 12 Special circumstances were found in the need for the applicant to have a substantial period of post release supervision with counselling, to assist in his rehabilitation and in the avoidance of further drug abuse, sufficient to "warrant a slight adjustment to the ratio set by S 44(2) of the Crimes (Sentencing Procedure) Act 1999". The adjustment so given involved a reduction of the ratio from 75% to 73% equivalent to a reduction of 1.5 months, leaving a period of potential release on parole of two years. 13 The applicant has addressed three grounds of challenge:

Insufficient weight given to the plea of guilty 14 It was submitted that a discount of "approximately 10%", which I take in the circumstances to have included a few points above that figure rather than below it, was a very modest discount for a plea of guilty which had a considerable utilitarian value and which reflected contrition. Rather than 10%, it was contended by reference to Lo that a discount should have been given in the order of 15% or thereabouts. In this regard it is important to remember what was said in Thomson & Houlton (2000) 49 NSWLR 383, by Spigelman CJ at paras 153-154: "153 The determination of where, within such a range, the discount should fall within a particular case is a matter for the discretion of the sentencing judge.

154. There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) the time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of a trial.

the complexity of the issue about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 15 154. The top of the range would be accepted to be restricted to pleas at the earliest possible opportunity and should not be given save in an exceptional case after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas; e.g. on the date fixed for trial, unless there are particular facts arising from the prospective length and complexity of the trial." 16 As Studdert J observed in the present case, the applicant did have an opportunity to plead guilty in the District Court, but did not do so. Moreover, once the ex officio indictment was presented, he absconded. It is true that the discount given was at the very bottom of the suggested range and that the plea had a utilitarian value. However, in the circumstances earlier outlined, it was more properly categorised as a late plea and as one that potentially called for a lesser discount than an earlier plea. In this regard it is not to be overlooked that the 10% to 25% suggested in Thomson & Houlton do not constitute bright lines. Rather, they reflect a range which does not call for precise mathematical application. I am not persuaded that a discount in excess of one which would answer the description of "approximately 10%" was, in the special circumstances of this case, required. Additionally, I am of the view that any greater discount would have resulted in a sentence that was manifestly lenient. 17 It is to be recalled that this Court intervenes only where it reaches the conclusion that the sentencing order as a whole resulted in error; that is, that some sentence other than that imposed should have been imposed. This is not such a case.

Insufficient allowance for periods spent in Protective and Strict Custody 18 It is the fact, as Kirby J pointed out in AB (1999) 73 ALJR 1385 at 1408, that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. It is also the fact that such form of detention can deny to a prisoner the full opportunities for programs and courses available to mainstream prisoners. Additionally, any prisoner with a history of being on protection, particularly one who has killed or abused a child, is potentially a marked man for whom the risk of reprisal is high. Had his Honour ignored those circumstances then error would have been demonstrated. However, it was a matter expressly acknowledged and said to have been taken into account. The submission advanced in this regard to the effect that "given the length of the head sentence, it would seem that his Honour gave inadequate weight to it", needs to be examined in the light of what is an appropriate sentence for an offence of manslaughter of this kind. 19 The authorities do show, as his Honour stated, that "the protection of children is of fundamental importance to society", such that there is a special need, in this type of case, for both special and general deterrence. 20 A review of the decisions, at first instance, and upon appeal, do reveal that the consistently heavy sentences have been imposed for the manslaughter of infants. They include the two cases of Ditfort NSWCCA 17 March 1992 and Vaughan (1991) 56 A Crim R 355, to which his Honour made reference. To those cases I would add the sentences imposed at first instance in Woodland (2001) NSWSC 426 (Wood CJ at CL) of seven years nine months with a non parole period of four years 9 months; Dawney (1999) NSWSC 15 September 1999 (Barr J), of eight years with a non parole period of five years; Bilton (2000) NSWSC 1113 (Bell J), seven years with a non parole period of four and a half years; and Recalde (2000) NSWSC 1247 (James J) of nine years with a non parole period of six years. While some of these sentences were pronounced after that imposed in the present case, they do reflect a consistently heavy pattern of sentencing for comparable cases. Moreover, in each of them the need for protection, and the risk of reprisal was as much present as it was in the present case. 21 As has been observed frequently, comparison with sentencing statistics for the offence of manslaughter, or with cases involving adult victims is of little value for the reasons discussed in decisions such as Elliott NSWCCA 24 February 1991, and Green (1999) NSWCCA 97, which relate to the wide variety of circumstances which the offence encompasses. For those reasons, I have not made reference to the Judicial Commission statistics or to cases other than those involving the manslaughter of infants. 22 When reference is made to the stern approach which the Court takes to the unlawful killing, by a carer, of an infant, I am unpersuaded that the sentence here imposed failed to make sufficient allowance for the considerations which do attach to the applicant's custodial position, both for the past and for the future. Added to that is the further circumstance, not mentioned by his Honour, that, at the time of this offence, the applicant was subject to a recognisance to be of good behaviour for three years which had been imposed in relation to a drug offence. That was itself a matter of serious aggravation: Readman (1990) 47 A Crim R 181. 23 This submission is not made good.

Failure to demonstrably take into account the pre sentence custody 24 In this regard it was the case that the applicant had spent ten days in custody between the time of his arrest, on 30 January 1997, and the date when he was granted bail on 10 February 1997, and a further period of one month and five days in custody between 10 May and 15 June 1998, totalling in all one month and fifteen days. His Honour made no mention of the first period of ten days, but expressly stated that he had taken into account the second period of one month and five days. It is, however, submitted that the sentence being expressed in round terms of seven years six months with a non parole period of five years six months, it did not demonstrate any such allowance, since one might reasonably have expected that it would either have been backdated, as is permissible: MacDonald NSWCCA 12 December 1995 and S47(2) Crimes (Sentencing Procedure) Act, or to have been reduced at the other end. 25 It is not clear why the two periods of pre sentence custody were not demonstrably reflected in the sentencing order. In my view, error did occur in this respect, having regard to the provisions of S 24 as well as S 47(2) and (3) of the Act, and to the principles and practice discussed in McHugh (1985) 1 NSWLR 588; Deeble NSWCCA 19 September 1991, and English (2000) NSWCCA 245. Although I otherwise consider the sentence appropriate, in the absence of any statement or reason for not backdating for the periods in question or for reducing the sentence from the other end, I am of the view that the Court should intervene to adjust them accordingly. 26 Accordingly, I propose that leave to appeal be granted, and that the appeal be allowed only to the extent of backdating the sentence and non parole period by one month and fifteen days, so that each should commence on 7 July 1999. The formal orders which I would propose accordingly would be as follows: 1. Leave to appeal granted. 2. Sentence quashed. 3. The applicant to be sentenced in substitution for the original sentence to imprisonment for seven and a half years to date from 7 July 1999.

4. A non parole period is set of five years six months, similarly to date from 7 July 1999 and to expire on 6 January 2005. 5. The earliest date on which the applicant is eligible to be released on parole is, accordingly, 7 January 2005. 27 BEAZLEY JA: I agree. 28 SPERLING J: I agree with the orders proposed. 29 An adjustment for the time in custody is necessary to cure what appears to have been an oversight. 30 As to the discount for the plea of guilty, I would not wish to be taken as saying that a discount of as little as 10% is appropriate, in ordinary circumstances, for a plea of guilty proffered at a time significantly before the date fixed for trial. However, having regard to all the circumstances of this case specified by the Chief Judge at Common Law, I would not regard a sentence of less than that imposed, with an adjustment for time in custody, as appropriate. 31 On that account, because of the terms of s 6(3) of the Criminal Appeal Act 1912, I would allow the appeal to the limited extent that is proposed. 32 BEAZLEY JA: The orders of the Court are those proposed by the Chief Judge at Common Law.

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