R v Khazma

The history of the relationship between DB and the offender

1. DB was the daughter of the offender's de facto partner, AS. Their relationship commenced when AS and the offender met via Facebook in November 2016. AS was at that time living with her grandmother, DB and her son, TW, aged 4 years. In early December 2016, AS and DB moved into a rented granny flat at the rear of premises at Guildford with the offender. At that time AS's son went to live with his father.

The events of the late afternoon of 19 December 2016

1. Shortly after 3:00pm on 19 December 2016, AS arrived at the offender's parent's home in Guildford West. DB was unconscious and unresponsive, lying on the back seat of the car. AS was described by the offender's parents, neighbours and attending police as "hysterical". She nominated the offender as the person responsible for her daughter's condition. This was confirmed in an ERISP in which she participated on 19 December 2016.
2. The child was observed lying on the back seat of the car by various witnesses. They described seeing significant areas of obvious bruising to her face and forehead with dried blood and mucous around her nose and mouth. At that time her clothing covered what were later revealed to be multiple burns to her arms, back, buttocks, legs and feet (additional to those in the perianal region, the subject of the third count). Her clothing also covered multiple sites of bruising on her chest, abdomen back and limbs and multiple bite marks on her shoulders, arms, legs and buttocks.
3. The offender gave evidence at trial that he inflicted none of the fatal injuries revealed at post-mortem and inflicted none of the secondary or non-fatal injuries. He gave evidence that it was AS who systematically abused her daughter in a variety of ways and, despite his efforts to stop her and his threats to leave her if the abuse continued, the episodic abuse increased in frequency and severity up to and including 19 December 2016 when, after opening the front door to the flat, he saw AS on top of her daughter on the bed punching and hitting her face with a closed fist. In cross-examination the offender said that he also saw AS hit DB's head into the wall and that she then became unconscious. He gave evidence that despite his attempts to revive her by CPR she did not regain consciousness. He denied shaking the child. He said that before AS left the flat with the child to seek medical attention, he assisted her to use a navigation application on her phone to locate a hospital where she could take the child.
4. By their verdicts, the jury must be taken to have rejected the offender's evidence as untrue.

The medical evidence

1. Despite the efforts of police and paramedics at the scene, and the efforts of the staff at Westmead Children's Hospital following the child's admission to the Intensive Care Unit at 3:54pm on 19 December 2016, she did not regain consciousness. A CT scan of her brain was performed at 5:01pm. An extensive acute subdural haemorrhage was identified on the right side of the brain and a smaller subdural haemorrhage on the left side. An area of haemorrhage was also identified in the corpus callosum.
2. A further CT scan was performed at 3:00pm on 20 December 2016 at which time tonsillar herniation was identified. The child's condition was described as critical. Brain stem testing was performed at about 8:00pm, without response. The ventilator and infusions maintaining DB's life were then disconnected. She was pronounced deceased at 9:12pm.

The offender's arrest

1. The offender was arrested at 5:02pm on 19 December 2016 in Fairfield Park by Snr Cst Dine and Snr Cst Cornwell. After AS had left the granny flat with the unconscious child, he had travelled to the park by taxi, ostensibly to meet a friend.
2. Although the child was not at that time deceased, the offender was informed by Snr Cst Dine he was under arrest for murder. When he was told at the point of arrest that the matter was "serious", according to the evidence of both arresting officers the offender said, "I didn't mean to kill her". That exchange was not contemporaneously recorded. It was admitted into evidence over the offender's objection (R v Khazma [2018] NSWSC 2055).
3. Before the offender was transferred into the custody of the police who were to transport him from the park, Snr Cst Dine used a mobile phone to record a further conversation with him. The offender was cautioned and asked to repeat what he had said at the point of arrest. He said: My step-daughter was having seizures. Like it's happened for the past, say, week. I just moved in with my wife to my house in Guildford … and my step-daughter had, like she had seizures like every couple of days for about a week. And I tried to help her, you know. I tried to help her and then today, today she was having a seizure and then she stopped breathing.
4. Snr Cst Dine then said, "When I started walking over the first thing you said was 'I didn't kill her', is that correct?". The offender responded, "Yeah, that's correct". Snr Cst Dine then said, "And I didn't mention anything with regards to it, is that correct?", to which the offender again responded, "Yeah, that's correct".
5. Snr Cst Dine gave evidence that after he activated the recording mechanism on his mobile phone and cautioned the offender with the intention of having him adopt what he had volunteered when he was informed of the seriousness of the situation, he unwittingly failed to accurately repeat what the offender had said to him. He gave evidence that he recorded in his police notebook that the offender said, "I didn't mean to kill her", but that he failed to appreciate the discrepancy between that account and what was recorded on his mobile phone until he was preparing to give evidence at the offender's trial. He gave evidence at trial that he clearly recalled the offender using the words, "I didn't mean to kill her". Snr Cst Cornwell corroborated his evidence.
6. It was the Crown case at trial that the jury would find that the offender said the words attributed to him on his arrest and that they amounted to an implied admission that he assaulted the child but that he did not intend to kill her.
7. I am satisfied that the offender said the words attributed to him by Snr Cst Dine. I am also satisfied that the offender made implied admissions to having assaulted the child in two other contexts. Both were left to the jury as admissions capable of supporting the Crown case. The first was in a text message sent to AS on 12 December 2016 while the offender was at the beach with friends where he said he knew he had to "calm down on her" which, in the context of the message, could only have been a reference to the child. AS gave evidence that the child had by that time been repeatedly and aggressively disciplined by the offender in a variety of ways, including slapping her and punching her.
8. The second admission which I also accept was made, was to a person the offender was sharing a cell with whilst he was on remand. That person gave evidence that the offender said: [H]im and her were … part of doing it, of hitting … the kid. Like they both used to hit the kid, but he said she used to hit her in front of him all the time.
9. That assertion is not only an admission by the offender that he "hit the child", it is significant for his further claim that AS also "hit" the child in his presence.
10. The same prisoner gave evidence that on another occasion, a couple of weeks later, he was woken by the offender smashing up the cell in a state of obvious high anxiety, shouting, "I did it once … a little baby girl, a little baby". The prisoner went on to say that the offender said, "The last thing I thought is that it would die" and "I did it".

The post-mortem evidence

1. Dr Du Toit-Prinsloo performed an autopsy on 21 and 22 December 2016, during which she identified 114 inflicted injuries on almost every area of the child's body, including the soles of her feet. Those inflicted injuries included 45 separate sites of bruising, 17 thermal injuries and 28 probable human bite marks.
2. As to the thermal injuries she gave the following evidence: A. These burn wounds looked like the top of part of a cigarette lighter, the top part of a cigarette lighter, and they're referred to as "smileys". It has a curvature marking and then, where the little wheel part of the cigarette lighter is situated, and then the top part where there is sparing, where the flame will come out so they have the appearance of the top part of ‑ metal part of a cigarette lighter. Q. And from the appearance of those injuries, did you form any view about the time that they were inflicted? A. Dating of burn wounds can be problematic, however, they looked different. Some of them had a clear scab or crust formation whereas others still had a yellow sloughing appearance as if the body is trying to heal itself and others just appeared red so therefore they were inflicted over a period of time, not at the same time.
3. Dr Du Toit-Prinsloo identified but did not count multiple healing wounds with scab formation on the child's face, ears, neck, arms, hands (including the beds of the fingernails), abdomen, back and toes. Extensive bilateral retinal haemorrhages were revealed on ophthalmologic examination conducted as part of the post-mortem.
4. Dr Marks, a paediatric specialist who attended on DB when she was in intensive care, identified what she described in her evidence as "tramline bruising" to both of the child's legs and bruising of the child's right hip and left foot. She gave evidence that these wounds were typical of impact with a curvilinear object or objects (such as a phone charger cord) applied under significant force.
5. The injury to the child's head and neck revealed by the CT scans on 19 and 20 December 2016 were also identified by Dr Du Toit-Prinsloo in the course of post-mortem. She identified an area of haemorrhage in the frontal and parietal region of the subscalp measuring 9cm x 9cm and the thickness of the subdural haemorrhage, which extended into the left and right hemispheres of the brain, as .2cm in thickness on the left and .5cm thickness on the right.
6. Discrete areas of bruising on the child's face (including the forehead) and the neck were identified, including on the right eyebrow, just above the eyebrow and on the inner aspect of the right upper eyelid. These bruises were described with colours of differing hue from greenish-blue to yellow the largest bruise (on the eyebrow) measuring 4cm x 3cm. A similar array of bruises was revealed on the left side of the child's head lateral to the eyebrow. On the left cheek was what was described as "a large area of bruising - reddish-blue in colour". An array of three bruises was clustered around the centre of the child's face. Another area of bruising was identified on the right side of the jawbone under the child's chin on the right side of the neck.

The evidence of the neuropathologist

1. On 11 January 2017, specimens of the child's brain and spinal cord were received by Associate Professor Buckland, neuropathologist. He identified the presence of nerve root haemorrhages and hypoxic and ischaemic changes in the spinal cord. He was unable to identify any particular injury or injuries to the head and spinal cord which were causative of death. He did give evidence however that the amount of blood adhering to the dura and descending into the arachnoid indicated the application of significant blunt force, associated with an inevitable loss of consciousness and a potential compromise of neurological function. While he gave evidence that a vigorous shaking of a child, and the accompanying accelerant, decelerant and rotational forces acting on the brain was also comprehended by the concept of blunt force injury, the amount of blood in the dura was inconsistent with having been caused by vigorous shaking alone. He also gave evidence that from his examination of the brain and neck and the results of the CT scans there were at least two traumatic events which resulted in the head and neck injuries, with the subdural haemorrhage being the older of the two injuries because of the healing process that he was able to discern by changes in the haemoglobin. He also gave evidence that the subdural bleeding from the first traumatic event may have commenced slowly and then increased in intensity as a result of a subsequent traumatic incident. He also gave evidence that a vigorous shaking of the child could also exacerbate a pre-existing subdural haemorrhage, and that this would occur irrespective of the child's state of unconsciousness.

The sentence proceedings of AS

1. On 2 March 2018, AS pleaded not guilty to the murder of DB but guilty of manslaughter. The Crown accepted that plea in full discharge of the indictment. After applying a combined discount of 50 per cent for the plea of guilty and for AS's assistance to the authorities, including her willingness to give evidence for the Crown at the offender's pending trial, she was sentenced on 20 June 2018 to imprisonment for 3 years with a non-parole period of 16 months (R v AS [2018] NSWSC 930).
2. It was the agreed position of the parties to AS's sentence proceedings that her criminal liability for DB's death was constituted, in part, by her failure to remove her daughter from an abusive domestic relationship with the offender where there was a patent risk to the child's health by reason of his escalating and gratuitously violent assaults and, in part, by her failure to obtain medical treatment for her daughter over a period of at least two hours on 19 December 2016, and very likely over a period of days prior to that, when after being assaulted by the offender the child lapsed into progressively extended periods of unconsciousness with accompanying perceptible changes in neurological function. It was no part of the Crown case on AS's sentence, or the Crown case in the trial of the offender, that AS inflicted any of the fatal injuries, or any of the extensive non-fatal injuries revealed at post-mortem, or that she was actively complicit in the offender's abuse of the child by encouraging it or by participating in it in any way.
3. AS gave evidence on sentence and at the offender's trial that when the abuse started she felt powerless to intervene and fearful of doing so, and that when the offender threatened her with physical violence she submitted to his control over her and over her child until 19 December 2016 when she managed to make her escape on the false promise to the offender that she would not implicate him.

The evidence of AS at trial

1. In addition to AS's evidence of the repeated and gratuitous assaults to the child's head culminating in the fatal assaults on 18 and 19 December 2016, she also gave evidence that the child was slapped, punched, whipped with a mobile phone charger cord, pulled by the hair, held upside down over a garbage bin, thrown against the wall so she would land in the bed and held off the ground by the throat as examples of the offender's systematic and unrelenting abuse of the child - a course of conduct which AS said commenced within a short time of her moving in with the offender. She gave evidence that despite her entreaties that the offender use other methods to discipline the child, the beatings and the physical punishments did not abate for any significant period of time before they resumed with increased frequency and intensity when the child was disobedient by refusing to eat, when she made a mess or when she refused to submit to the offender's rules, including that she only move when he permitted her to and only displayed affection to her mother when he allowed it.
2. There was no evidence adduced at trial that anyone visited or entered the granny flat from the time DB moved into the flat with her mother in the three weeks or so prior to her death, and no evidence that anyone saw any evidence of the results of physical abuse until the child was seen lying unconscious on the back seat of the car on 19 December 2016.
3. In those circumstances, the Crown case on all three counts on the indictment was dependent upon the jury accepting AS's evidence as to what she witnessed of the events in which the child sustained the fatal injuries and the circumstances in which she sustained the injuries the subject of the second and third counts on the indictment.
4. The jury were directed that in order to convict the offender of any of the counts on the indictment they would need to be satisfied of AS's evidence that the offender did the act or acts constituting each of the offences and to be satisfied of that fact beyond reasonable doubt. In reasoning to that conclusion, they were also directed that it would be dangerous to convict the offender of any of the three counts unless they regarded AS's evidence as supported or confirmed by other evidence. Finally, they were also directed that because AS was a person involved in the circumstances which resulted in the death of her daughter, her evidence may be unreliable and that they should approach her evidence with caution for that reason.

Should a life sentence be imposed?

1. Every murder is serious involving as it does the death of a person, accompanied either by an intention to kill or an intention to inflict grievous bodily harm from which death results. The seriousness of that criminal conduct and society's unqualified respect for the sanctity of human life is reflected in the legislature providing for a sentence of life imprisonment as the maximum sentence for murder. On the same analysis. the seriousness with which the legislature treats the murder of a child is reflected in the provision of a standard non parole period of 25 years in the event that a determinate sentence is imposed.
2. The imposition of a life sentence for murder, as with any offence that carries life imprisonment as the maximum penalty, is governed by the provisions of s 6(1) of the Crimes (Sentencing Procedure) Act.
3. That section operates to allow a Court to impose a sentence of life imprisonment where the Court is satisfied that that the offender's level of culpability is so extreme that the community's interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.
4. Whether the offender's culpability for DB's death can be properly characterised as extreme is central to the question whether a life sentence is to be imposed. If the relevant features of his offending are such that his culpability for the death of DB can fairly be described that way, the related question is whether any combination of the statutory indicia of "retribution, punishment, community protection and deterrence" inevitably leads to the conclusion that the only sentence that can be imposed is one of imprisonment for life. While it follows that the absence of any one or more of those indicia may make it more difficult to reach the conclusion that a life sentence is required, that will not necessarily be determinative. For example, were I satisfied that before the offender inflicted the fatal injuries he inflicted the full catalogue of physical injuries revealed at post-mortem, and that he did so progressively and repeatedly over a period of weeks, without at any time taking responsibility for inflicting any of the injuries, much less any expression of remorse at having killed the child, the issue of future dangerousness may, together with the other indicia, warrant the imposition of a life sentence.
5. In Knight v R [2006] NSWCCA 292, at [23], McClellan CJ at CL observed: Section 61(1) has been the subject of consideration in a number of decisions. It is not necessary to analyse them for present purposes beyond a statement of the following principles: ● the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v R (1987) 163 CLR 447 at 451-452. [see also R v Kilic [2016] HCA 48; (2016) 259 CLR 256] ● it is not possible to prescribe a list of cases falling within the worst category - ingenuity can always conjure up a case of greater heinousness: Veen v R (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 - Hunt CJ at CL). ● a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment: R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994). ● … ● it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt (2004) 59 NSWLR 557. ● ...
6. In the event that I am not satisfied that the offender's culpability for the death of DB is properly characterised as extreme, an assessment of the objective seriousness of the murder remains integral to the appointment of a determinate sentence.
7. The feature of the murder which the Crown submitted warrants the imposition of a sentence of life imprisonment was what the Court was invited to find was the offender's repeated and sustained abuse of DB, by a variety of mechanisms and productive of a range of injuries (in addition to the thermal injuries in the child's perianal region, the subject of the third count on the indictment) in a course of conduct which commenced within a short time of AS moving into the rented premises with the offender in early December 2016 and which culminated in his infliction of the fatal head and neck injuries on 18 and 19 December 2016.
8. The Crown submitted that the infliction of the secondary injuries and by the range of mechanisms identified in the medical evidence, including biting the child, burning her by the application of a cigarette lighter to her skin of her face and feet and legs, and the application of considerable and direct force such as to cause the large areas of bruising on her torso, limbs and face, were injuries that the Court would find were deliberately and gratuitously inflicted by the offender, such that his culpability can only be described as extreme and that the community's interest in retribution and punishment can only be met by a life sentence.
9. The evidence relevant to proof of the nature and extent of the secondary injuries emerged through the unchallenged evidence of the forensic pathologist and AS's evidence as to the circumstances in which those injuries were inflicted. Her evidence was the subject of direct challenge at trial as untrue in every respect.
10. That body of evidence was admitted at trial for the limited purpose of providing the context within which the Crown alleged the assaultive acts the subject of the first, second and third counts on the indictment were inflicted. The jury were directed that in order to find the offender's guilt on those counts proved beyond reasonable doubt, they would need to accept AS's evidence as to what she witnessed as truthful or, in the case of the thermal injuries to the perianal region, in the absence of AS witnessing the infliction of those injuries, the jury would need to accept her denials that she inflicted any of the thermal burns, and to accept her evidence of what the offender said to her when he was confronted with the allegation that he had burnt the child.
11. While the jury's favourable assessment of AS's credibility is necessarily reflected in the verdicts of guilty, none of the verdicts incorporate a finding beyond reasonable doubt that all of the other injuries or the secondary injuries were inflicted by the offender, neither does it reflect a finding that only some of them were inflicted by him. Were the jury to have been invited to reason to the conclusion that the offender inflicted the thermal injuries the subject of the third count because they could be satisfied beyond reasonable doubt that he inflicted all of the thermal injuries, evidencing thereby a tendency on his part to use a cigarette lighter to burn the child, the jury's verdict of guilty on that count would necessarily have incorporated a finding that the offender inflicted all the thermal injuries despite the fact that a large number of them were uncharged acts.
12. Applying the same analysis, were the jury invited to consider the other secondary injuries (in particular, the injuries to the child's face) as evidence supporting a tendency in the offender to inflict injuries with the intention of causing really serious injury, the jury's verdict of guilty on the first count might have incorporated a finding that the offender inflicted all the secondary injuries, despite the fact that a large number of them were uncharged acts.
13. That was not the approach taken at trial. Accordingly, for sentencing purposes, the onus is on the Crown to satisfy me beyond reasonable doubt that the offender inflicted the secondary injuries (not otherwise comprehended by the second or the third count on the indictment) if I am to take that evidence into account on the question whether a life sentence should be imposed, as the Crown urged I should. In the event that I am not satisfied that a life sentence should be imposed, and the Crown relies upon the offender's infliction of those injuries, or some of them, as evidence of the objective seriousness of the murder count in the imposition of a determinate sentence, the Crown must also establish the offender inflicted those injuries beyond reasonable doubt.
14. The Crown invited me to make that finding for both aspects of the sentencing exercise.
15. Mr Brasch, counsel for the offender, submitted that in all the circumstances, and, in particular, having regard to what he submitted were residual questions as to AS's credibility despite the jury's verdicts, I would be left with a reasonable doubt as to whether the offender inflicted any of the secondary injuries and, even where I suspicious that the offender had inflicted some of them, because I could not be satisfied beyond reasonable doubt which of them were inflicted by him, I should disregard all of them for sentencing purposes.
16. Were I to find as a fact, and beyond reasonable doubt, that the offender inflicted all of the thermal injuries, Mr Brasch did accept that would be a finding relevant to whether the offender's culpability for the murder is so extreme as to warrant the imposition of a life sentence. He also accepted it would be relevant in determining whether the offender's conduct on the third count constitutes a worst case of the offence of assault occasioning actual bodily such as to justify the imposition of the maximum penalty of 5 years imprisonment for that offence. The Crown did not submit that a discrete finding of fact that the offender inflicted all of the thermal injuries would be sufficient in itself to elevate the culpability of the offender for DB's murder to such an extent that the imposition of a life sentence was warranted. It was the Crown's submission that it was the offender's infliction of all of the secondary injuries that elevated his culpability to that level.

Of the catalogue of secondary injuries, which, if any, am I satisfied the offender inflicted?

1. At trial Mr Brasch sought to undermine AS's credibility by exposing what was said to be the lie in her claim to have been rendered so subordinate to the offender that she failed to intervene when the offender's assaults on her child commenced and failed to intervene as those assaults continued with increasing ferocity. In cross-examination, particular attention was focused on the text and tenor of her expressions of love and desire for the offender in the schedule of SMS messages commencing on 13 November 2016 (before they moved in together) and concluding on 13 December 2016 (just short of a week before child died) as so wildly inconsistent with her claim to be in fear of the offender, and his effective prisoner, that the jury should have a reasonable doubt as to whether he was the person inflicting injuries on the child as distinct from the reasonable possibility that AS was that person.
2. Cross-examination also focused on AS's unrestricted movements in and out of the flat on repeated occasions on 19 December 2016 between about 8am and 1:30pm before the child was ultimately removed by her and driven to the home of the offender's parents. These movements were recorded on CCTV cameras operating on neighbouring properties for security purposes.
3. Mr Brasch submitted that it was inconceivable, if the offender was the brutal man AS claimed he was, that on none of those occasions did she take the opportunity to call police, ask for assistance from neighbours or call for emergency medical treatment for her daughter who was, on her version, inside the flat with the offender, severely injured from a head injury inflicted the night before. Among the extracts of the CCTV footage, emphasis was focused on an occasion when, within an hour or so of AS leaving with the child, the offender left the flat with the appearance of leaving for some time, when AS is seen to rush after him and appear to take hold of him to prevent him from leaving before they walked back into the flat together. Mr Brasch submitted that on AS's version of events this must also have been at a time when the child was not only severely injured from having been repeatedly assaulted over weeks and severely assaulted the night before when her head was slammed into the wall, but not long before she was assaulted again when she fell forward onto her forehead before again lapsing into unconsciousness. Mr Brasch submitted this did not fit with AS's evidence that she was a prisoner and the offender an uncontrollable and extremely violent man.
4. It is no part of this sentencing exercise to revisit the evidence adduced in AS's sentence proceedings as to the extent to which her psychosocial profile may have impacted upon her capacity to leave an abusive domestic relationship with her child. Her abject failure to protect her daughter from the abuse to which the child was being subjected, and with her knowledge, because of an impaired capacity for rational and informed decision-making at that time of her life, formed part of the factual findings I made in her sentencing proceedings. Although her behaviour as reflected in the CCTV footage on 19 December 2016 was not in evidence in those proceedings, and although I do find her behaviour on that occasion extremely difficult to understand, it does not follow that I am prepared to find as a fact that she was complicit in her daughter's abuse or that she actively participated in that abuse by inflicting the injuries herself, or to have any reason to doubt that the offender repeatedly abused the child and threatened AS were she to expose him as the abuser.
5. There was also evidence adduced by the offender at his trial from a number of witnesses who gave evidence of having seen AS act violently out of anger and frustration when her son was a toddler, on one occasion causing an injury to his face when he was thrown against a bed. That evidence was admitted as tendency evidence over the objection of the Crown (R v Khazma [2018] NSWSC 2055). None of those witnesses gave any evidence of seeing AS assaulting DB, who was a baby at the time. They were, however, in her company when they claim to have seen and heard AS assaulting her son.
6. Despite her denials in cross-examination that she had ever used corporal punishment on either of her children, I suspect there might have been instances where, out of frustration or a desire to "keep the peace" or to maintain the focus and affection of the offender, she may have struck DB, even aggressively. The following SMS message is suggestive, at the very least, of a divided loyalty and AS's desperate need to placate the offender at the expense of her daughter: Hamoudi … I should have never opened my mouth I fukd up and I regret it … I'm sorry I'll never do it again I promise you that. Whatever you want, wat ever you say will be done. Your my husband and I love you I'm not gonna argue with you coz of [DB] I'm not loosing [sic] you coz of her. I wish I never opened my mouth. I miss you already … I'm so sorry. Please please forgive me…
7. The jury were directed that, if they accepted the evidence of the tendency witnesses, that evidence was available to them in determining whether the Crown had proved its case beyond reasonable doubt. The jury's verdict does not, however, entail any finding by them that the witnesses who gave evidence of seeing AS physically assault her son gave honest and reliable evidence. The jury may have accepted their evidence without necessarily concluding that it had such an overwhelmingly adverse impact upon AS's credibility that they were left with a reasonable doubt as to whether the offender inflicted the injuries that were the subject of the counts on the indictment.
8. For sentencing purposes, I accept the evidence of the tendency witnesses to the effect that AS did administer physical punishment on her son which, when taken together with other evidence in the trial, leaves me with a reasonable doubt as to whether the offender inflicted all of the injuries revealed at post-mortem and AS none of them. It does not follow, however, that I have found as a fact that AS assaulted her daughter such as to inflict any particular injury or collection of injuries, simply that there is a reasonable possibility she may have, leaving me with a reasonable doubt as to whether the offender inflicted all of the 114 injuries revealed at post-mortem.
9. In coming to that conclusion I also take into account the assertion by the accused to his cellmate that both he and AS "hit" the child and that AS hit the child "in front of him". I also take into account evidence which was before me on sentence, although not adduced at trial, of the offender's mother seeing observable and distinct bite marks on the child's legs when the child was visiting her, either immediately before or immediately after AS and the offender moved in together. When she queried AS about the marks, AS told her that both her and the offender would bite the child, claiming that it was in fun.
10. Although I am unable to find beyond reasonable doubt that the offender was solely responsible for all of the 114 injuries identified at post-mortem, I am satisfied to the criminal standard that he was solely responsible for most of them, including many of the bite marks and the majority of the large areas of bruising on the child's face, limbs and torso, consistent with AS's evidence of his punching the child and striking her. I am also satisfied beyond reasonable doubt of AS's evidence that most, if not all, of those injuries were inflicted under the pretext of the offender disciplining the child or punishing her. I am also satisfied to the same standard that the offender inflicted all of the thermal injuries and, in the absence of any evidence that the burns were inflicted in some way associated with disciplining the child or punishing her for some minor infraction, that he inflicted those injuries wantonly and repeatedly deriving some perverse pleasure from the pain the child would inevitably have suffered when she was burnt and for hours, perhaps even days, afterwards. Although the burns in the perianal region carry a sexual connotation, the Crown does not advance that submission. Neither did the Crown seek to make the case at trial that lacerations to the child's anus, also revealed at post-mortem, were evidence of deliberate penetrative acts. For that reason, I am obliged to disregard any suggestion that might be so for sentencing purposes.
11. In concluding that the offender was solely responsible for the infliction of all the thermal injuries, I have accepted AS's denials that she inflicted any of them, as I do the veracity of her account of the circumstances in which, within days of the child's death, when she was changing the child's nappy she first learnt that the offender had burnt her daughter's perianal region and burnt the back of her thighs. I also take into account her demeanour in the witness box when giving evidence of that discovery. I accept her evidence that the offender called the burns "smileys" and that when she challenged him as to why he would burn the child he said, "Don't question what I do or what I say".
12. I remain incredulous that AS had apparently failed to notice the patent thermal injuries on other parts of the child's body, including on her face, prior to discovering the genital burns and the burns on the back of the child's thighs (or if she did notice them she did nothing about them). I am equally incredulous that she did not immediately remove herself and her child from the home and seek the intervention of the authorities and medical attention for her daughter's injuries. That does not, however, allow me to make a positive finding she had any role to play at all in the infliction of the thermal injuries or to cause me to have a reasonable doubt as to whether the offender did.

The offender's subjective circumstances

1. The offender tendered a report by Dr Marcelo Rodriguez, psychologist, dated 22 March 2019 from which the following information can be meaningfully extracted.
2. The offender is now 25 years of age. At the time of the offending he was 23 years old. He grew up in Guildford with his parents who have been married for approximately 30 years. During the trial the Court heard evidence from the offender's father who works as a security guard and his mother who works as a hairdresser. The offender reported that he did not experience any physical or psychological abuse during his childhood and does not complain that corporal punishment was overutilised.
3. The offender attended primary school where on his own account he was in trouble "from time to time". He then attended high school but was expelled in Year 7 for fighting. He then attended a behavioural school but he left in Year 8.
4. The offender appears to have had a relatively limited employment history. He has no formal trade qualifications.
5. Based on the offender's interview with Dr Rodriguez, and his juvenile criminal history, it would appear that he engaged in anti-social behaviour from a relatively young age. At the age of 14 he appeared before the Children's Court for an offence of robbery which ultimately resulted in the imposition of a control order on 28 May 2009 for a period of 7 months with a non-parole period of 2 months. He has had multiple appearances before the Children's Court.
6. On 24 September 2012 he was sentenced in the District Court for a number of offences, including robbery whilst armed with an offensive weapon. A term of imprisonment of 4 years with a non-parole period of 2 years was imposed. He was ultimately released to parole on 8 May 2015.
7. It would appear that the offender maintains a close and caring relationship with his parents and also with his former "wife" (a person other than AS).
8. He did not report any concerns regarding his physical health and there is no history of any serious medical condition. Neither does he appear to have any history of psychiatric illness although he reports being diagnosed with Attention Deficit and Hyperactivity Disorder when young.
9. Insofar as illicit drugs and alcohol are concerned, it would appear that the offender developed an addiction to Buprenorphine after being admitted into custody in September 2011. He is currently taking Methadone for that addiction.
10. In short, there is nothing in the offender's subjective circumstances including any history of mental health issues, that would provide any explanation for the context within which his offending occurred or the offences he committed. I do not regard his subjective circumstances as having any significant weight at all in mitigation of sentence. Although the offender's age is a relevant consideration on the question whether a life sentence will be imposed, the balance of his subjective circumstances have no bearing at all on that question.
11. I am also unable to make any realistic assessment of the offender's prospects of rehabilitation in circumstances where he refuses to acknowledge any responsibility for the infliction of any of the injuries the subject of the charged counts on the indictment or any responsibility for the child's death.

Should a life sentence be imposed?

1. Notwithstanding the brutality of the murder of DB which I am satisfied was committed in the context of a succession of previous assaults and the many injuries she sustained as a result of them, I am unable to reach a point of satisfaction, beyond reasonable doubt, that the offender's culpability for her murder is of such an extreme nature that a life sentence should be imposed. Whatever might be said about his motivation in persistently and repeatedly abusing a vulnerable child, there is no evidence that the assaults were associated with any irrational hatred of her. The fatal assaults appear to be the result of his uncontrolled rage and a complete lack of appreciation of the vulnerability of the child to acts of extreme physical violence directed to her head and neck. That conclusion should not be taken to mean that because it is possible to envisage a more extreme case, that this is not an extreme case.
2. I have concluded that the various community concerns identified in s 6(1) of the Crimes (Sentencing Procedure) Act can be met by the imposition of a lengthy determinate sentence reflecting the objective seriousness of the murder and the high level of moral culpability which it reflects.
3. In concluding that a life sentence is not warranted, I have taken into account the offender's age and his criminal record which does not reflect a tendency in the past to serious offences of physical violence.
4. In reaching that conclusion, I have taken into account the comparative cases to which I was referred.

Comparable cases

1. There are a number of sentencing decisions of this Court that have dealt with murder of children. While none of them have in any sense dictated the outcome in this case they have been of assistance.

Ross v R [2016] NSWCCA 176 The offender pleaded not guilty. He killed the 2 year old daughter of his de-facto partner. He had mistreated the child during the two months before her death. She sustained a number of blunt force injuries to the head. She was then left in a pram unattended overnight and the following day. The offender was sentenced to 40 years imprisonment with a non-parole period of 30 years. That sentence was not disturbed on appeal.

R v Maybir (No 8) [2016] NSWSC 166 The offender pleaded not guilty. The 7 year old victim was his partner's son. He had an intellectual disability. The offender inflicted severe physical discipline that amounted to cruel, degrading and inhumane treatment. The child died from severe blunt force trauma to the head. The sentencing judge indicated a sentence of 38 years imprisonment with a non-parole period of 28 years and 6 months.

R v Hill [2014] NSWSC 1010 The offender pleaded guilty. He received a 10 per cent discount for his plea. He killed the 2 year old son of his de-facto. He had physically abused the victim over a period of months, causing a fractured skull and a gastric tear by two separate blows. The Court found that he would have been aware of the pain caused by the blow to the stomach. The second blow was inflicted some hours later. The offender was sentenced to 27 years and 6 months imprisonment with a non-parole period of 20 years and 6 months.

R v LN; R v AW (No 10) [2017] NSWSC 1387 The offender LN pleaded not guilty. She was the mother of the 3 year old victim. She assaulted him over a lengthy period. That pattern of assaults was taken into account in assessing the objective seriousness of the offending. She was sentenced to 44 years imprisonment with a non-parole period of 33 years.

R v JK [2018] NSWSC 250 The offender pleaded guilty. The facts involved sustained beatings of the offender's 12 year old step-daughter over several days and a history of violent assaults which included torture and gratuitous cruelty. In the course of sentencing proceedings the court was taken to a number of cases where children were killed following prolonged violence and was provided with a schedule summarising 23 such cases. The offender was sentences to 37 years and 6 months imprisonment with a non-parole period of 28 years.

R v SW (No 3) [2009] NSWSC 1043; SW v R [2013] NSWCCA 103 The offender pleaded not-guilty. She was the mother of a 7 year old girl who died as a result of starvation and neglect. The victim suffered from autism and a developmental delay. The offender was initially sentenced (by R A Hulme J) to life imprisonment. An appeal against that sentence succeeded by a 2:1 majority. The offender was resentenced to 40 years imprisonment with a non-parole period of 30 years.

Victim impact statements

1. The foster mother of the child TW, now six years of age, produced and asked to read a victim impact statement on his behalf. Despite my having some doubts as to whether Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act allowed for the Court to receive a victim impact statement on behalf of the child or it being read on his behalf, I determined to allow that to occur.
2. In that statement the foster mother refers to the circumstances in which the child came to live with her and her family after he was removed from his father's care following DB's death. She also refers to the circumstances in which the child was informed that his sister had died. The child was not informed, and understandably so, of the circumstances in which she died. His only understanding is that she was sick and went to hospital where she died. To the extent to which I am entitled at law, I take into account in the imposition of sentence the young boy's sadness at the death of his sister.

The sentence on Count 1

1. Having concluded that a life sentence for the murder of DB is not warranted, the assessment of the offender's moral culpability for the acts which I am satisfied were causative of death (a finding which necessarily attracts a finding that each of them was inflicted with the intention of causing the child grievous bodily harm) and the circumstances in which the fatal injuries were inflicted will, together with the offender's age as the only subjective circumstance of any weight, inform the determinate sentence to be indicated for that offence.
2. Because in this case I have resolved to the conclusion that the sentence of life imprisonment is not justified, the standard non-parole period of 25 years imprisonment which is activated because of the age of the deceased child operates as an important guidepost in the determination of the sentence to be imposed on the murder count.
3. I am also conscious of the need not to overweight the significance of the child's age in the assessment of the objective seriousness of the murder. I am nonetheless entitled to take into account a range of contextual factors, including not only the nature and the number of the fatal injuries inflicted on a very young child which are serious in themselves, but also the circumstances in which they were inflicted. In my assessment, the single factor of greatest weight in the contextual sense was that when the offender inflicted the traumatic and ultimately fatal head injuries in successive assaults on 18 and 19 December 2016, he could have not have failed to appreciate that the child was both emotionally and physically debilitated by the combined impact of the injuries he had inflicted before 18 December 2016, and by a range of obvious and untreated injuries she was suffering from at that time, including untreated bite marks, burns and abrasions over her entire body. In that physical and mental state, DB was not simply vulnerable and defenceless because of her age and her dependence on adults for safety and protection but she was without any agency of her own or capacity to defend herself from the two adults who were, in different ways, ultimately criminally responsible for her death.
4. I do not regard the fact that the Crown alleged an intention to inflict grievous bodily harm and not an intention to kill as undermining the objective seriousness of the murder of the child or that the Crown's concession that the conduct was not premeditated has that effect.
5. The standard non-parole period of 25 years is set at a very high level. In the context of the murder of the child, it represents a non-parole period, taking into account only the objective factors impacting upon the relative seriousness of the offence, for an offence in the mid-range of objective seriousness. In my view, the objective seriousness of this offending is in the high-range.
6. Taking all of these matters into account, I have determined to indicate a determinate sentence of a length capable of reflecting the offender's very grave criminality, reflected in the circumstances in which the child was murdered, together with the need for the determinate sentence to reflect the sentencing principles of general deterrence, retribution and denunciation and the community's legitimate interest in the imposition of a fair and proportionate punishment.

The sentence on Count 2

1. Since the verdict of the jury on the second count necessarily reflects their acceptance of AS's evidence that the offender assaulted DB on 18 December 2016 by slamming her head into the wall with sufficient force that she lapsed into unconsciousness (the state of unconsciousness being the actual bodily harm upon which the Crown relied proof of that count), and that the same act is also relied upon by the Crown as one of the acts causative of death, the sentence indicated for the second count will be taken into account in the imposition of an aggregate sentence without any notional accumulation.

The sentence on Count 3

1. In his written submissions on sentence, Mr Brasch conceded that the conduct comprising the third count on the indictment is a serious example of assault occasioning actual bodily harm. That offence by the breadth of the kinds of actual bodily harm that may be inflicted and the innumerable ways in which it might be occasioned, necessarily comprehends an extremely broad range of conduct. The actual bodily harm that resulted from the offender's deliberate infliction of thermal injuries to the child's perianal region when he applied an ignited cigarette lighter to her exposed genital region, thermal injuries which penetrated the skin such as to result in the extensive burns identified by the forensic pathologist, is as an offence in a worst case category of an offence contrary to s 59 of the Crimes Act.
2. For that reason, and in the absence of any evidence which would serve to mitigate the seriousness of that offending, I am satisfied that in indicating a sentence for that offence the maximum available penalty of 5 years imprisonment should be nominated. The aggregate sentencing order I will make reflects the fact that I have accumulated the sentences indicated for the first and third counts on the indictment consistent with totality principles.
3. I expressly decline to find special circumstances in the fixing of the non-parole period relative to the aggregate sentence given that the balance of term is more than sufficient to promote the offender's future reintegration into the community.

Custodial circumstances

1. Given the length of the sentence that is to be imposed upon the offender, it is difficult to predict the custodial circumstances to which he will be subject for the duration of his sentence. However, given the nature of the offences for which he is to be sentenced, it is reasonable to infer that he will likely spend a substantial period, if not his entire sentence, in protective custody. That will inevitably limit his opportunities to engage in recreational activity and will place limitations, in the distant future, on his suitability for a lower classification. I take that into account, albeit to a limited extent, in the imposition of the aggregate sentence.

Sentence

1. For the offence of murder, I indicate a sentence of imprisonment of 40 years. I am required under s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to specify a non-parole period for that offence because it is an offence which attracts a standard non-parole period of 25 years. I specify a non-parole period of 30 years. For the offence of assault occasioning actual bodily harm, comprising Count 2 on the indictment, I indicate a term of imprisonment of 3 years. For the offence of assault occasioning actual bodily harm, comprising Count 3 on the indictment, I indicate a term of imprisonment of 5 years. I fix an aggregate sentence of imprisonment of 44 years to commence from 19 December 2016, comprising a non-parole period of 33 years and a balance of term of 11 years. The offender will be eligible to be considered for release to parole on 18 December 2049. The term of the aggregate sentence will expire on 18 December 2060.

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: 12 April 2019