R v Klamo [2007] VSC 120

2 Only two persons were present with Izaiah in the hours before his death. You were one of them. Izaiah's mother was the other. Neither of you gave evidence.

3 This, of course, was your right. I do not criticise either you or your wife for exercising those rights. But their exercise meant that the jury had no assistance from you, apart from that which is in the police record of interview, when they came to examine a number of important aspects of the evidence. One such aspect concerned the circumstances which confronted the baby in and immediately before the very short interval between his distress being noticed in the early morning of 27 July and the arrival of the paramedics.

4 The medical evidence about the cause of the haematoma was equivocal. It is obvious to any reasonable person, however, that babies barely a month old should be shaken gently, or not at all. Any other kind of shaking - indeed, any application of force to the head of a child of that age - is clearly dangerous. And in one sense, the medical evidence was entirely consistent with Izaiah having been subjected to trauma shortly before he died. Subdural haematomas are commonly associated with trauma. One and perhaps the only alternative possible cause of the haemorrhage from which Izaiah died was pre-existing natural disease. But Professor Cordner, who performed an autopsy on Izaiah, found no sign of this.

5 It is also true that other injuries, such as bruising, or neck injury, or a retinal haemorrhage, are commonly associated with a subdural haemorrhage caused by shaking. Again, however, Professor Cordner found no evidence of such associated injuries.

6 In these circumstances, and despite the lack of associated injuries, one inference open to the jury was that Izaiah was subjected to trauma, causing a subdural haematoma, shortly before he died. Your failure to give evidence may well have given the jury greater comfort than otherwise they would have had in accepting this inference as pointing beyond reasonable doubt to the cause of Izaiah's death.

7 An alternative inference open to the jury was that the earlier subdural haematoma was the result of the shaking episode you described to the police. According to the alternative inference, that shaking episode in turn resulted in a re-bleed on 27 July. Professor Cordner said that the fresh haematoma could possibly be due to spontaneous bleeding, a phenomenon that can occur with minimal or no trauma after a previous subdural haemorrhage.

8 Here, the account given by you to the police is important. At one point in your record of interview, you described the shaking you gave to Izaiah a week or so before he died. You said that it was "not that hard." At another point, however, you said that you "just shook him vigorously", that you were a "dickhead" for doing what you did, and that Izaiah was "too pure" to be treated in that way. You told the police that a baby should not ever have to go through that. It was dangerous and stupid.

9 Again, the fact that you did not enter the witness box during the trial was perhaps significant. It may have made it easier for the jury to prefer your description of the shaking as being something no baby should have to go through, where an alternative was "not that hard".

10 I make these points in part because I have read the letters addressed to the court by members of your family and your circle of friends. These are exhibit D1 on your plea. Some of these letters criticise, occasionally in very strong terms, the verdict reached by the jury. While I understand the emotional foundation for these views, nevertheless the material put before the jury should be seen in its entire context. This correspondence does not take into account that material in that way. I hasten to add, however, that I do not take this as an adverse reflection on you. On the contrary, the letters are an indication of the strong family support you have on both your own and your wife's side. They also speak of your gentleness and of your love for both Izaiah and your new daughter. I have taken this into account in your favour.

11 The fact is that both you and I are bound by the verdict of the jury. I proceed, however, on the basis that that verdict may be supported by concluding that the jury found only one instance of wrongful handling of the child, and that that single instance resulted in both the first subdural haemorrhage found by Dr Cordner, and the second, terminal, haemorrhage of 27 July. Otherwise, you were a good and loving father and husband with no prior convictions. I also find that you grieve for your son, and that a degree of depression followed his death, to be lifted in part on the birth of your daughter.

12 There is not much to add by way of background material. You were born in Czechoslovakia, as it then was, on 15 December 1983. You came to Australia with your parents, and have lived here most of your life. You had no permanent job at the time of Izaiah's death, but you assisted with his care. You were a proud and happy father. The shaking instance was an aberration. You belong to a close and supportive family, and until bail was refused last week, you lived with your mother, father, wife and daughter in Melton.

13 Nevertheless, what you did in the shaking episode resulted in the felonious death of your son. Human life has a sanctity that the courts must protect. That is recognised by Parliament, which has prescribed a maximum penalty of 20 years' imprisonment for manslaughter. At the same time, this is an offence that covers a very wide range of offending. Yours was at the lower end of that range. Your barrister, Mr Langslow, submitted that a suspended sentence was, in the circumstances, appropriate.

14 Although Mr Langslow said all that could be said in support of that submission, I cannot accept it. Such an outcome would not give due recognition to the sanctity of life, or to the principles of sentencing which I am bound to follow. These include punishment, denunciation and personal and general deterrence. In your case, personal deterrence is not a significant factor, because I am satisfied that you are most unlikely to re-offend. General deterrence, however, is very important. We are concerned here with the very young lives of helpless infants. It would be a breach by the courts of their duty to the public if they did not make it plain that, if death follows in circumstances in which a reasonable person, shaking a baby as you did, would realise that the baby was being exposed to an appreciable risk of serious injury, then the result will usually be a sentence of immediate incarceration.

15 In fixing what I think is the appropriate sentence, I have balanced as best I can the principles of sentencing laid down in the Sentencing Act. These are binding on me. In addition to those to which I have already referred, I mention rehabilitation as a purpose for which a sentence may be imposed. It seems to me that your prospects here are very good. I also mention current sentencing practices as a matter to which I must have, and have had, regard.

16 In my opinion, a head sentence of five years' imprisonment should be imposed. On the other hand, I think that you should serve an unusually short period of that imprisonment before becoming eligible for parole. Such an outcome would maximise your opportunity to rejoin your family and the community while you daughter is still young, yet at the same time allow an appropriate period of supervision and for adjustment and planning. I therefore direct that you serve a minimum of two years' imprisonment before being eligible for parole.

17 I declare that the period to be reckoned as already served under the sentence is 14 days inclusive of today, and I direct that there be noted in the records of the Court the fact that the declaration has been made, and its details.