R v Jones [2002] VSC 602

5. On Friday 16 June 2000 you and your partner Charmaine Hynes and your children moved into a Ministry of Housing house at 1 Dyer Court Traralgon. Your children were all very young. Joshua the eldest was 12 months old. Your twin sons Jamie and Jordan were aged just over six weeks. During 17 June you and Ms Hynes spent the day unpacking and arranging your possessions in the new home.

8. At about 8 p.m. your sister Stacey Jones arrived. At that time the twins who were wrapped in baby blankets had been placed on the couch in the lounge room. They were on the sides with their backs against the back rest. The seat of the couch was 40 centimetres or 16 inches from the floor. Shortly thereafter Ms Hynes and your sister left to go shopping at the Traralgon Plaza. Prior to that time Jordan had been crying. According to your sister you picked him up and checked his nappy. You asked your partner if he needed a bottle and she said he was not due for one. You then replaced him on the couch after giving him a dummy.

11. The two of them were away for a period of time in excess of 20 minutes during which you were alone with the twins and Joshua. When they returned to the house you told them that Joshua had pulled Jordan off the couch onto the floor. Jordan was then on your bed and appeared to your wife to be blue whilst your sister described him as pale and semi-awake with blue lips. You were instructed by the women to try to keep Jordan awake while an ambulance was called by your sister. This you attempted to do by tapping him lightly. You also prevented him swallowing his tongue.

14. Ambulance personnel attended at Dyer Court at 9.21 p.m. One of them Stuart Reid described Jordan as cyanosed, that is blue in colour, non-responsive and with no respiratory effect. Mr Reid observed a large haematoma or collection of blood which extended from the left temporal region towards the back of the head as well as a laceration and contusion to the upper lip. Intermittent positive pressure ventilation was commenced and spontaneous respiration was restored prior to Jordan being taken to the Latrobe Valley Regional Hospital.

17. You told Stuart Reid that your other child, being Joshua, must have pulled Jordan off the couch although you had not been present. At the hospital you gave a similar account to Ms Linda Dobell, the mother of Miss Hynes, adding that you had been unpacking a box in another room when you heard a thump, ran into the lounge room and saw Joshua sitting on the floor with the baby next to him. That account was repeated to Dr Chris Barnes who first saw your child at the hospital.

20. When you spoke to Mr Kevin Healey and Ms Joyce Sellens, Child Protection Workers and Detective Senior Constable Ludekens on 18 June you said that Jordan was lying on the floor with his head towards the couch but at right angles to it and was taking short and shallow breaths. I note that, according to Ms Hynes, Joshua was crawling at this time but was only able to walk if holding onto the furniture, and further that he was very good with the twins and loved them.

23. Examination of Jordan at the hospital was undertaken by Dr Barnes and Dr Craig Winter, the Director of Emergency Services. They observed the large haematoma which I have already mentioned and that over the front area of the fontanelle, being the membrane between the cranial bones, was markedly tense. There were small bruises to the top lip and right cheek and the upper lip frenulum, being the piece of skin between the lip and gum, was torn.

26. A CT Scan revealed a fracture to the left side of the skull and widespread subdural and subarachnoid bleeding. There was also an increase in intracranial pressure. Transfer to the Royal Children's Hospital was arranged and Jordan was admitted to the Intensive Care Unit under the care of Mr Michael Harari, Consultant Paediatrician and Mr Geoffrey Klug, a neurosurgeon.

29. On arrival Jordan was placed on a life support system. Another CT Scan confirmed the earlier findings and subsequent examination also revealed aspiration pneumonia which could have led to further exacerbation of the existing brain damage present. Mr Klug was of the opinion that given the severity of the brain injury surgical intervention was not indicated. An assessment of brain death was made on 20 June and the mechanical intervention was withdrawn.

32. A post mortem conducted by Dr Malcolm Dodd confirmed the presence of both subdural and subarachnoid haemorrhages as the result of a 10 centimetre fracture of the skull on the left side. There was also patchy bruising over the right cheek, temple and side of the skull. Bruising over the upper lip was revealed as was the torn frenulum. Additionally, ribs on the left hand side were fractured at their junction with the vertebral column. Dr Dodd was of the view that these fractures were consistent with the gripping of the child's torso rather than any form of cardio-pulmonary resuscitation. He said that to produce this injury would require moderate to severe force.

35. The cause of death itself was blunt head trauma. It was Dr Dodd's view that the skull fracture was caused by a forceful sideways blow to the left side of the head whilst two or more forceful blows to the front of the face in an upward direction caused the complex of injuries to the right cheek, right temple, side of the head and upper lip. Dr Dodd expressed the view that this complex of injuries could not have been caused by an uncomplicated fall or slip from a height of 40 centimetres onto a polished hardboard floor. In his statement he concluded:

"In total, the complex of injuries including significant skull fracture, facial bruises in multiple planes and a significant patten of rib fracture involving the posterior ribs on the left side only indicate non-accidental trauma and therefore a case of child abuse and battery."

39. This view is essentially supported by Dr Craig Winter, to whom I have already referred, as well as paediatricians at the Royal Children's Hospital Dr Jennifer Smith and Dr Michael Harari. Further Dr Barry Kras, Consultant Paediatrician who assessed your oldest son Joshua on 24 August 2000, reported that his gross motor skills were delayed, including his ability to be steady on his feet. He expressed the opinion that it would be highly unlikely that he would have had the capacity to act in the manner claimed to have caused these injuries.

42. When interviewed by the Homicide Squad on 18 June 2000 you persisted with your original account of the incident. You explained the damage to Jordan's upper lip as being the result of a head butt by Joshua on the night of Friday 16 June. You told the police that Jordan was otherwise uninjured before this incident. You described undressing him and giving him mouth to mouth resuscitation after the incident and prior to your partner returning, in an attempt to revive him. You denied any possibility that you might have become angry, lost your temper and struck Jordan.

45. Ultimately earlier this month you pleaded guilty to the manslaughter of Jordan. Mr Hillman S.C. who appeared for the Crown indicated that the plea was accepted on the basis that you had struck the child causing the major injuries which led to his death and that your action in doing so was both unlawful and dangerous. Inherent in that plea is that your acts were conscious and voluntary ones but were not performed with any murderous intent.

48. In the plea on your behalf your counsel Mr Hartnett pointed to your record as a caring and loving father to all of your children and how you had welcomed the birth of each of them. You told the police about changing nappies, giving bottles and getting up to tend to the children if they stirred during the night. Your devoted parenting in which you supported your partner Charmaine is attested to both by Charmaine and her mother Linda Dobell. Indeed in victim impact statements they express not only the emotional trauma they have experienced at the loss of Jordan and its effect upon the rest of the family, but they refuse to believe that you were capable of the acts to which you have pleaded guilty. They declare their continuing support for you. I am informed this is also the attitude of your father and friends. In fact your family and your children visit you at Port Phillip Prison and you see your future as being with them.

51. I accept that there is no history of mistreatment of your children and that consequently what occurred was an unpremeditated spontaneous explosion of anger. An explanation of what occurred may lie in your personal history. You told the police that in effect you were not quite all with it, or "not the full quid." In this regard there is material before the court that you have an IQ of 75.

54. Dr Douglas Bell, the Consultant Psychiatrist who interviewed you in October 2000, described you as being below average, approaching borderline intellectual capacity. Another psychiatrist Dr Nicholas Lis, who treated you between January and October 1997, stated in a report tendered to the court that you were of poor intelligence but not intellectually disabled. Mr Ian Joblin, Forensic Psychologist, called to give evidence on your behalf, agreed with the view that you are of limited intelligence although not in the retarded category.

57. There is no suggestion however that you suffer from any specific psychiatric illness nor do you have any recognised personality disorder, however you have suffered from emotional problems to which I will refer shortly.

60. You were born in Brisbane in November 1979 and are presently 23 years old. You have one younger sister Stacey. Your parents separated when you were about two years old and you were subsequently brought up by your father who has been employed in the Railways and as a part-time school cleaner. You were close to both your father and sister.

63. On the material before the court there is an absence of precise and consistent information about your past but it appears that after the family came to Melbourne you were educated for over two years at Travencore, a school for persons with intellectual problems. According to your father, in your late primary school years you were assessed and treated for several months by a child psychiatrist because of your disruptive and nuisance behaviour at school. Subsequently you attended Footscray Secondary College where you spent several years attempting to pass Level 8. It seems that you were ultimately expelled because of disruptive behaviour and displays of aggression.

66. These displays of aggression involved, for example, punching the school lockers or a fence. In a report to your legal representative Dr Lis states:

"He [that is you] considered his main problem to be his poor control of his temper, that he frequently felt angry for little reason. He stated that he did not think before he acted and is often in a world of his own. He did not volunteer any other symptoms of a major psychiatric disorder, however at the end of the initial interview he admitted having tried to cut himself on one occasion with a penknife."

"I felt that your client was of poor intelligence but not intellectually disabled. He clearly suffered from poor temper control and from a moderate level of depression due to a general sense of alienation."

Dr Lis prescribed Aropax an anti-depressant, as well as Tegretol, a mood stabiliser, which assists in curbing violent outbursts of rage. You continued to take Aropax and have ceased Tegretol although the precise type of the second medication you are on was not made clear to me. You told Dr Bell that you obtained your medication through the Latrobe Hospital.

73. Your partner Ms Hynes indicated to Dr Bell that whilst you would become moody and irritable at times, resulting in verbal conflict, you would usually resolve the argument by walking off, swearing or slamming a door.

76. In your record of interview you stated that you had had anger all your life and that when you are unsettled you snap at people for reasons about which you are unaware. You also said that you did not know why you became angry.

79. Mr Joblin noted that given your history you require medication to control your temper. You claim to have taken medication on the evening of this incident and said that the tablets kept you calm.

82. You have only ever had one job. From about 16 and a half years of age you worked at Express Cardboard Tubing in Altona making cardboard tubes. This job lasted for about one and a half years. Since that time you have been in receipt of a Disability Support Pension.

85. You met your partner Charmaine when you were aged 18 and commenced living with her within a short period of time. There were, as I have indicated, three children from that relationship. There were 1998 Magistrate Court convictions for theft and damaging property. I am instructed by your counsel that these matters related to an attempt by you to obtain money from a public telephone to give to your sister to enable her to travel home. In any event those convictions have no relevance to this offence.

88. I accept that your low IQ has made life difficult for you psychologically and socially and may well make your imprisonment more difficult to serve. I take that into account in determining the appropriate sentence. However you are intelligent enough to know that punching a six week old baby will cause physical harm. In this case you were also intelligent enough to devise and successfully maintain an account of events which not absolved you from any blame for Jordan's injuries but which implicated your totally innocent 12 month old son. It would seem that one motivation behind this discreditable aspect of your conduct was your own reluctance to accept the horrific consequences of your actions. Even now you have provided no detailed account of what occurred. However your own mental and emotional disabilities probably contributed to this offence. The stress experienced by a person with your limited intellectual resources having to undertake the responsibility of looking after two six week old children in addition to one aged 12 months may ultimately have become too great. Something must have occurred which triggered an outburst of the anger to which you have long been prone. There may have been problems with the adequacy of your medication which contributed to the incident but this is speculation. What the evidence does indicate is that this was a sudden, unpremeditated and isolated incident.

91. Whilst the community is rightly concerned that child abuse be punished and potential perpetrators deterred the sentence imposed in each individual case must necessarily be linked to the facts of that case. Here the Crown accepts that given your mental disabilities general deterrence should be moderated to a degree. The level of your moral culpability is also reduced to a limited extent. I also take into account your plea of guilty, late though it was.

94. Your counsel indicate that you have had great difficulty facing the reality of what has occurred and living with it, indeed you have felt suicidal. Your feelings of remorse were confirmed by the psychologist Mr Joblin. Further, as required I have regard to your relative youth. You were in fact only 20 years old when this offence was committed. It has now been hanging over your head for two and a half years. You were not charged until just over a year after Jordan's death.

97. During the time you have subsequently spent in prison you have undertaken courses in literacy and this is to your credit. Given your virtual offence-free past you are not without prospects of rehabilitation. However as Mr Joblin pointed out you will require medication to control your temper and in this regard you should not be left to your own devices when you are released from prison.

100. Even taking into account all the mitigating factors to which I have referred this is a serious offence. Jordan Hynes-Jones was a very young and very vulnerable baby. He was totally dependent upon you. He was entitled to your care and protection. Your breach of your parental responsibilities has had the most tragic of consequences. The offence is one which apart from the factors that I have set out, would attract a very severe penalty indeed.

103. Once again as in the recent case of R v. D'Arne Bourke (6/12/2002) - I am faced with an extraordinarily difficult sentencing task. Doing the best I can to apply and balance the various sentencing principles enunciated in the Sentencing Act I have concluded that you should be imprisoned for a period of nine years and I fix a period of six years before you become eligible for parole. Further I declare that the period to be reckoned as already served under the sentence is 527 days inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.