R v Maybir

Life with Mr Maybir

1. Life for Ms James and her children changed dramatically after she met Mr Maybir in January 2013. They met at her brother's house where she and the children were living and she said they immediately became intimate as lovers. This appeared to cause some ruction within the family as a result of some unexplained concern about the children being exposed to the relationship. As a result she decided to move out and she accepted Mr Maybir's offer for her and the children to stay at his music studio at Oatley where he had been living. They moved there on about 24 January.
2. Ms James gave evidence that prior to meeting Mr Maybir she considered herself to be a loving, kind but firm parent. Soon after meeting Mr Maybir she came to embrace his extreme religious views and parenting philosophies. He spoke of his experience working with troubled teenage children and explained that the cause of the problems of those children was deficient parenting. He persuaded her that her parenting skills were inadequate and that she was allowing the children, especially Levai, to manipulate her emotionally. He counselled her to be strict, to insist on obedience of her commands and to impose physical punishment in response to disobedience.
3. The punishments he encouraged, and meted out himself, included smacking with the heel of a shoe or with a spatula; squatting; leaning against the wall; holding objects in their hands with their arms outstretched; and running. Another technique involved having the children punch each other.
4. Ms James described in some detail how Mr Maybir would punish the children in these types of ways. She initially expressed some concern but was told that if she did not agree with his disciplinary techniques she should pack up and move out. She said she did not do that because she had no family support and would have nowhere to live. She also said she was reliant upon Mr Maybir and loved him.
5. Ms James very soon succumbed to Mr Maybir's counselling about the need for harsh disciplinary methods. There was an occasion on 20 February 2013 when she and the children were on a train when she chastised and physically punished Levai for not being able to recite the alphabet. She said that Mr Maybir had told her that he was old enough and intelligent enough to know his alphabet; it was just a behavioural issue; and that he should be punished if he failed to recite it correctly. Ms James ceased taking Levai to school at around about this time.
6. I pause to observe that much was sought to be made by senior counsel for Mr Maybir of evidence given by Ms James that his regime of "discipline" did not commence until about 6 weeks into their relationship. For that reason it was contended that her conduct on the train on 20 February was not a product of his influence. On the basis that I do not believe Ms James was at all accurate in that estimate of time I do not accept the submission. I accept her explanation for why she did what she did.
7. The following passage in Ms James' evidence summarises how she had been enthralled and subjugated by Mr Maybir: "Q. How would you describe the dynamics of your relationship in terms of power? A. I loved Mr Maybir a lot. I became to rely on him mentally, emotionally. He would talk to me about his ex-wife and his two children and how much he missed them, and how he wanted to meet a woman who loved him more than he loved her and how obedient she must be spiritually as well. Q. Did you try to become that woman? A. Yes."
8. Ms James also said that Mr Maybir "influenced me so much to the point where I wanted to be what he wanted me to be". This included wanting her to be more religious and spiritual.
9. On 23 March 2013 Ms James recorded a video in the lounge area of the studio in which she spoke of her feelings towards Mr Maybir. Her infatuation with him is clear: "He's such a good man … He's the most awesome guy to be around with. He's so funny. In the depths of my darkness, he always brings me out … he's that light that shines through. I love him. I love him."

The "purple snake"

1. Shortly after moving into the studio, Mr Maybir asked Ms James if she suspected anything sexual had happened with any of the children and she replied that she did not. However, he told her that based upon his experience of working with troubled children he believed something had happened. He claimed that when he had spoken to Levai, AB and CB there had been mention of a "purple snake". Ms James had never heard the children speak of such a thing. This topic of the children having supposedly been sexually abused became a recurring issue.
2. In a series of videos recorded by Mr Maybir on 8 March 2013 he purported to interview Levai about the "purple snake", encouraging him to say something that would support an allegation that Levai had been sexually abused by Ms James' father. In the course of this he incited Levai to demonstrate the sexual abuse by inserting his finger into his little brother's anus. Levai's responses to Mr Maybir's questioning make it obvious that Levai did not have the faintest idea what he was being asked about. The jury returned a verdict of guilty in respect of Count 1 which alleged an offence of inciting a person under the age of 16, namely 7 years, to an act of indecency towards CB, knowing the act was being filmed for the purpose of the production of child abuse material.
3. It was the Crown case that the "purple snake" issue was a creation of Mr Maybir's, designed to have the effect of isolating Ms James and her children from her family. Whether or not that was his intention, it did have that effect, and I am satisfied that it was his fictional creation.

Mr Maybir as an army general

1. Mr Maybir was said to be heavily inspired by the movie "300". He referred to himself, and had the children refer to him, as "the General" and to themselves as "Spartans". He would require the children to line up and he would call out, "Spartans, what is your profession?" and the children would respond in unison with some nonsensical word.
2. He also referred to himself as being "the General of the Army of the Helpers". He said this "army" carried out "the will of God". His friend, Mr Tureif Hourani, described its focus as being to help disadvantaged youth and Mr Maybir described it as having also adopted a focus on helping single mothers with children. In a video he recorded on 30 March 2013 which he gave the title "What it Takes", part of a documentary he was making of his life, he said: "As you know we found out not so long ago, a few weeks ago, that these children were being ah, touched by their grandfather. The Army of the Helpers stepped in. … [T]hey hid away after we, the mother of the children went public to the family. The family threatened to bash me and kill me or whatever … It was only just … to get this family to a safe place into safety so Kopri's in full hiding right now as I talk. No one knows where I am … And to all my family and that I hope you realise that the Army of the Helpers is real and that this documentary is real … And I just pray that God protects me and keeps me doing what I'm doing - and the Army of the Helpers goes from five people to … hundreds, hundreds. … So as General of Army of the Helpers, their leader and leading by example obviously it's not about the … music. … I couldn't have done it without my main man in the last six months Tureif Hourani, current CEO of Seventy Seven Records and he has been the backbone other than me of Army of the Helpers aside from the record label. … But we know we're doing the will of God, and God, if he was here on this earth, would want to help every person too, whether they were Muslim, Christian, Hindu, Jew, Atheist, Agnostic, ah whatever, Buddhist, much respect to all the followers of God and good ways and good morals and we love youse. We're out here thinking of youse what we can do next. … And that's the Army of the Helpers' General leading the way. I had a mission to finish and I wasn't going to let the system stop me from helping three kids that they're probably going to arrest in 10 years 18 years. Army of the Helpers hits it where it happens and that's in the families. And all you single mums out there just know that the Army of the Helpers is coming, ah that's our prime focus at the moment."
3. Mr Maybir said in his evidence that the documentary, "What it Takes" was going to be released after he had won either an ARIA or a Grammy award so as to give people "a real insight into [his] life".

Moving out of the studio

1. Having three young children living in a commercial building with only communal bathroom facilities (accessible via stairs and corridors through common property) proved to be a problem. To avoid needing to take the children to the toilet during business hours Mr Maybir had each of them wearing nappies and urinating in a bucket. Despite this, there were inevitable toileting accidents in the studio which angered Mr Maybir because of the smell. He required the children to own up as to who was responsible and would be physically abusive until one had spoken up. It would seem that Levai became the primary victim in that he was the least likely to ask to be taken to the toilet.
2. At some stage in early March the family moved to live in the garage at Mr Maybir's mother's home at Woodpark. It was there on 16 March 2013 that a video was recorded of Mr Maybir inciting Levai to be assaulted by his two younger siblings. They punched and slapped him multiple times on Mr Maybir's command. Mr Maybir is heard to be laughing as this occurred. The video shows Levai with a pitiful and pained expression. He doubled over in pain whenever punched in the abdomen but otherwise simply stood to attention and took the punishment without saying a word. This video is sickening to watch but it amply demonstrates Mr Maybir's disdain for Levai and his physical and psychological cruelty towards him. Mr Maybir pleaded guilty to three counts of assault and one of producing child abuse material (Counts 2 - 5) in respect of this incident.

Other indications of Mr Maybir's disdain for Levai

1. Ms James said that Levai would not cry when he was troubled. Rather, he would go within himself; he would cower whenever someone yelled at him or was aggressive towards him. She said this angered Mr Maybir even more because Levai was not responding in the way he would expect him to. She tried to explain that this was just Levai's personality but he said, "Well, that's not normal". She also described him giving vent to his frustration at Levai not getting upset or crying by grabbing his face and squeezing, a description which mirrored that given by Ms Brealey.
2. On 22 February 2013 a video was recorded as Mr Maybir, Ms James and the children were on a train arriving at Circular Quay railway station. When Levai was unable to see something that Mr Maybir asked him to look at, he pointed to Levai and mocked him by laughing and saying, "Look at him ... is this kid alright?"
3. Mr Maybir resorted to other callous and cruel punishments. He forced Levai to stand clothed in a cold shower. There was evidence of him putting Levai's underpants on his head. There was an occasion when to stop Levai crying he put ice down his pants and later joked to a friend about Levai having "blue balls". He admitted to police that there was an occasion when he punished Levai by making him eat his own faeces. He was asked why and said, "there was no purpose, I was just angry". (I note that Ms James said he did the same thing to AB as well.)
4. At the conclusion of his cross-examination the Crown Prosecutor put to Mr Maybir that he had no respect for Levai. He replied, "I had lots of respect for that little boy". In my view, nothing could be further from the truth.

Back to the studio

1. The family returned to live at the studio for a short period. There was a video recorded on 17 March 2013 of Mr Maybir wrestling with Levai. The accused pleaded not guilty to two counts of assault (Counts 6 and 7); the Crown case being that the conduct was too rough to be regarded as "play". The jury obviously had a reasonable doubt about this and returned verdicts of not guilty.

Camping

1. Just before the Easter weekend at the end of March 2013 the family moved to live at the Sydney Tourist Park at Miranda for a short time. On Good Friday (29 March) they moved to the Bulli Beach Tourist Park where a number of incidents occurred.
2. Mr Maybir pleaded guilty to assaulting Levai on an occasion when they were in their tent by striking him a number of times with a spatula (Count 8). A witness said that he struck Levai at least ten times but it was put to her that it was less than five times. I do not think the difference matters terribly much.
3. Mr Maybir was found guilty of assaulting Levai on an occasion when all the family were on the beach (Count 9). The facts relating to this incident were disputed but I am satisfied that it involved Levai being forced to run on the beach to the point of exhaustion. He fell to the sand but was picked up by Mr Maybir, struck with a stick or similar object to the lower back/buttocks region and told to keep going.
4. Ms James gave evidence of that and other events, as did other campers. She was asked in relation to this one how it made her feel and she said she "felt hopeless". She was asked whether she had ever protested to Mr Maybir about his conduct and she said she had not because, "At that time I had given responsibility [for disciplining the children] to Mr Maybir".
5. Later the same day Levai was required by Mr Maybir to run back and forward from one point to another on the grass near their campsite. Again Levai became exhausted and fell to the ground but Mr Maybir picked him up and punched him hard to the face. A witness heard Mr Maybir say something to the effect of "keep running or you'll get more of what you just got". Count 10 alleged an offence of assault occasioning actual bodily harm and, alternatively, Count 11 alleged an assault. The jury returned a verdict of guilty to Count 10. Witness descriptions of seeing a lump on Levai's forehead with photographic confirmation support the verdict for the more serious offence.
6. These three assaults were not the only instances of misconduct by Mr Maybir (or Ms James) that occurred at Bulli. Despite some inconsistencies, I am satisfied by the overall evidence of the eyewitnesses that the following occurred. Levai was forced to sit outside the tent for an extended period of time, with very little clothing and sobbing at times, on the morning of both Saturday 30 March and Sunday 31 March as punishment for toileting mishaps. Ms James struck Levai with a spatula a number of times on another occasion.
7. In the late afternoon of 30 March a fellow camper was in the amenities block when Levai came in wanting a drink. The camper lifted him up to the tap and said that he was surprised at how much water he gulped. The camper noticed that Levai was very skinny and said his ribs were visible. In the late afternoon of 31 March (after the Count 10 and 11 incident), Levai was invited into a neighbour's tent where he was given juice and Easter eggs which he quickly consumed. It was in this context that one or more lumps were seen on Levai's forehead.
8. Fellow campers were so distressed by the mistreatment of Levai they witnessed that police were notified. Two officers attended during the evening of 31 March but gave evidence that they saw no injuries. I accept the evidence of the campers, supported as it is by a photograph of Levai with at least one and possibly two lumps on the forehead.
9. As a result of the police visit the manager of the park, after having spoken to the officers, offered Ms James and the children accommodation in a cabin. They stayed there until early May 2013 during which time Mr Maybir spent more time at the studio at Oatley.
10. There was an occasion early in the time when the family was at Bulli when they had a meal comprising chicken and bread rolls but Levai was given only a bread roll and water. This was another punishment for a toilet mishap.
11. There was an incident in the cabin in mid-April when Ms James became upset with Levai. She said she was yelling at him and started smacking him with a spatula. Levai struggled and fell against a bed. Mr Maybir told him to keep still and that he deserved it. He grabbed Levai by the arm and dragged him onto the bed and held him down. He told Ms James to continue smacking him. She took up a piece of skirting board and struck him a number of times to the buttocks while Mr Maybir held him down. Ms James said that welts later appeared on Levai's buttocks and they became infected. Mr Maybir counselled her against taking him to a doctor because of the questions that would be asked so she obtained treatments and dressings from a pharmacy. Mr Maybir pleaded guilty to an offence of reckless wounding in company (Count 12) in respect of this incident.
12. At some stage when living in the cabin there was an incident when Mr Maybir forced Levai to stand under a cold shower while he questioned him. Ms James said she heard a thud and a moan and she went to the bathroom doorway to investigate. She heard Mr Maybir ask Levai, "why are you lying" as he punched him in the middle of the chest.
13. In a video recorded on 12 April 2013 Levai is shown to have a large bruise on the right side of his forehead and a small laceration and associated bruise under his right eye.
14. In another video, recorded in the cabin on 20 April 2013, Levai is shown being forced to put a jacket on, take it off, let it fall to the ground, pick it up, hang it over a chair and then put it on again. He was forced by Ms James to repeat these actions numerous times, something she said was derived from a movie, "The Karate Kid". It is apparent that Levai was lethargic and in a state of discomfort, struggling to perform the routine. There appears to be bruising to the left side of his face and left arm. The other children are heard to be watching a movie nearby. Mr Maybir was not present. In a separate video, Ms James is recorded as describing this as "the new discipline plan" that she has implemented because smacking was not working. She also described how Levai was on "an eating plan" whereby he was getting the "bare minimum" and was "excluded from any special treats".
15. The following day Ms James recorded a video of the children running on the beach at Bulli. It shows them continually running between two posts 20 metres apart. The children appear tired, particularly Levai. Ms James referred to this as "training".
16. Mr Maybir, Ms James and the children travelled to Brisbane by train in early May but they returned to live at the studio a few days later.
17. According to Ms James, there was an occasion when they were back at the studio when Mr Maybir was squatting in front of Levai as he questioned him when he struck out with his foot and hit Levai in the chest.

19 May 2013

1. A video was recorded on the evening of 19 May 2013. It shows Levai being made to run on the spot while he is questioned about the "purple snake" allegation concerning Ms James' father. It is apparent that by this time Mr Maybir had given up on his claim to believe that Mr James had abused the children and, rather ironically, had persuaded Ms James to believe that the children, Levai in particular, had lied about it. By this stage, Levai had been rendered so compliant that when Mr Maybir asked him, "why did you make all this up" he meekly replied, "because I keep lying all the time".
2. Ms James said that after the running on the spot, she slapped Levai to the side of the face. She said it was "a firm slap" but it did not leave a mark. She denied that it forced Levai's head to come into contact with a door. I am satisfied that this was a false suggestion created by Mr Maybir in an attempt to provide an alternative explanation for the child being found on post-mortem examination to have sustained a fracture to his parietal bone.
3. Mr Maybir then wanted Levai to do another punishment. He was required to squat with his back against the wall with his arms outstretched to the side. Levai kept falling down and Mr Maybir would tell him to get back up and do it again. While Levai was doing this Mr Maybir was reading random passages from the Bible.

20 May 2013

1. Life in the studio began uneventfully on the morning of 20 May 2013. There was some talk about an outing to the Blue Mountains and Mr Maybir made a number of internet searches about that. While he was doing this he received a text message advising that his sister-in-law had just given birth.
2. Ms James said she woke the children and left them when they were sitting up in bed. She went to the kitchenette to prepare breakfast. She said that as she was making toast she heard "a scratch and a thud" which sounded like something scraping against the floor. She went and looked through a nearby window into the lounge area. She could not see all of the room but noticed AB and CB on the far side of the room in their sleeping area. She returned to the kitchen. She waited for the toast to pop and then started buttering it. Mr Maybir then came in carrying Levai in his arms. Levai was unconscious. Mr Maybir explained, "Levai fell over, it was an accident".
3. Ms James took Levai in her arms and tried to rouse him but he did not respond. She said "his arms were rolled back and he had a bit of froth on the corner of his mouth". She splashed water on his face and then took him to the lounge. She said his breathing was slow and shallow and his eyes were slightly open but he was otherwise not responding. She tried to give him liquid Panadol but was spilling it; Levai was biting the spoon. Mr Maybir put his hands beside Levai's jaw to try and open his mouth.
4. Levai's condition deteriorated. He was laying on the lounge but was later transferred to a sleeping bag which was put on a mattress on the floor. Ms James said it first occurred to her around midday that he may have been extremely seriously injured. She asked Mr Maybir, because he was the one who made the decisions, whether he thought Levai needed medical attention. He said he did not know and asked her what she thought. She replied that she did not know either. The Crown Prosecutor asked her, "Did you know?" She replied, "I was afraid to know … I was afraid of finally putting Mr Maybir in a position with the police." She said she still loved him at that point.
5. In the evening Mr Maybir went to visit his brother and sister-in-law and their new baby. When he returned, he, Ms James, AB and CB had pizza. Ms James checked on Levai's condition during the evening but said she was still afraid to call an ambulance. She last checked him before going to bed at 11.30pm.

21 May 2013

1. Ms James woke early and went to check on Levai. She found him to be stiff and cold. After obtaining approval from Mr Maybir she called the ambulance service. He told her to say that Levai had fallen off a pogo stick. While they were waiting for the ambulance to arrive he got rid of some cannabis and a bong. He also took out to a garbage bin on the kerb a bag containing items of children's clothing, many pairs of children's underwear and a doona on which there was a blood stain with a DNA profile consistent with being Levai's.
2. The ambulance officers who attended the scene immediately recognised that Levai was dead. Signs of lividity and rigor mortis indicated that he had been dead for some time. Ms James was allowed to hold him until the police arrived. Mr Maybir knelt beside her and said, "He's in a better place, he's with the angels now". Mr Maybir told ambulance and police officers that Levai had fallen off a pogo stick. A police officer overheard him say to Ms James that "he is in a better place, he is with Jesus now … you didn't know Jesus until you met me. That was the only way I could help you".
3. The forensic examination of the scene and the subsequent analysis of various items revealed a number of blood stains found in various areas of the studio with a DNA profile the same as Levai's. The Crown did not place any emphasis on this in the case that was put to the jury or on sentence.

Post-mortem examination

1. Dr Issabella Brouwer carried out a post-mortem examination. She found there was a mass of swelling to the back of the child's head extending down to the neck. There was a fracture in the base of the skull at the back of the head directly associated with an area of bruising. It was her opinion that "quite substantial force" would be required to cause such blunt force injury. It could have been caused by one or more impacts. Directly associated with this was an acute subdural haemorrhage causing pressure on the brain leading to death.
2. There was an issue in the trial about whether shaking may have been the cause of the fatal injury. The overwhelming force of the evidence was to the effect that it was not. Dr Brouwer was resolutely of the view that it was "an extremely forceful impact to the back of the head" that was the cause.
3. Dr Brouwer also found a hairline fracture in the left parietal area indicative of a blunt force injury. Bruising on both sides of the head was consistent with having been caused by a thumb on the right side and fingers on the left side. Her opinion was that there could have been a gripping of the head with substantial force causing bleeding into the muscles on both sides.
4. A large number of other injuries were noted all over the child's body. There were numerous bruises to the front of the torso. A group of bruises on the right side of the chest were indicative of having been caused by a punch with substantial force. Another group of bruises on the left side of the chest was in the same area as underlying healing fractures to four ribs. The degree of healing to the ribs indicated the fractures had occurred three to four weeks earlier, possibly longer, but the bruises were more recent and were indicative of having been caused by a fist. The repetition of trauma to the area might have interfered with the healing of the rib fractures. Between the ribs and the hip on the left side there were two scars consistent with having been caused by a linear object.
5. Bruises and abrasions were found in various places on the child's back, some "recent" (meaning at the time of death or hours to days old) and others "remote" (weeks or months old). Scars on the left side in the rib cage area were consistent with having been caused by a linear object. Scars and open wounds which appeared to have become infected were seen on the buttocks.
6. Various bruises were seen on the left arm, some recent and others remote. A large bruise on the inner left elbow was consistent with the arm having been gripped with some force. A number of scars were seen which Dr Brouwer said were consistent with having been caused by a linear object, for example the handle of a large spoon. There were many similar injuries seen on the right arm.
7. Multiple bruises on the front of the right leg included a group that were seen on x-ray that were reminiscent of a shoe print injury. There was an abrasion on the fourth toe. A lesion on the big toe appeared to have been caused by the skin being perforated by an oval-shaped object. Further bruising was found on the back of this leg.
8. On the left leg there were multiple bruises, some recent and some remote. There were also abrasions consistent with having been caused by a linear object. There was a healing wound on the top of the foot consistent with the skin having been penetrated with substantial force by a rounded object. A fractured metatarsal leading to the little toe was consistent with the application of blunt force trauma.
9. Generally, Dr Brouwer opined that fractures in different stages of healing, together with the presence of fractures in uncommon locations, for example the fingers and the metatarsal, were strong indicators of non-accidental injuries associated with child abuse.
10. Other observations made by Dr Brouwer included that Levai was 117cm in height and weighed 20.5 kg. Both measurements fell under the 25th percentile for boys of the age of 7. I note that Levai was a month short of his 8th birthday.
11. Mr Maybir sought to explain the thumb and fingerprint bruising on the sides of Levai's head by saying that he exerted some force when the child was biting the spoon as Ms James was trying to administer Panadol. Dr Brouwer thought that to be unlikely. In my view, the location of fingertip bruises adjacent to and above and below the left eye renders it highly improbable.
12. I do not accept that Mr Maybir was responsible for all of the extensive injuries seen on the body of Levai in Dr Brouwer's post-mortem examination. Ms James was at least responsible for causing the injuries seen on the buttocks and I have no hesitation in concluding that she was responsible for the infliction of some of the other injuries. However I am satisfied that Mr Maybir was responsible for the majority of them.

Explanations for the fatal injury

1. Mr Maybir has provided four explanations for how Levai sustained the blunt force trauma to the back of his head that resulted in his death. First he said that the child had fallen from a pogo stick. Then he told police that he had fallen to the floor when being punished by being made to stand on a large coffee tin. When confronted with some medical evidence he then said the child had got back up onto the coffee tin but had fallen a second time. Mr Maybir abandoned all of that nonsense at trial and claimed that Levai accidentally fell to the floor when he had tried to perform a "play" wrestling manoeuvre of throwing him towards a lounge. The manner in which he described it made no more sense than any of his previous explanations.

Sentencing of Kayla James

1. Ms James pleaded guilty and was sentenced by Harrison J for four offences of assault; one of reckless wounding in company; one of consenting to Levai being used in the production of child abuse material; three of producing child abuse material; one of failing to provide Levai with the necessities of life; and one of manslaughter. In sentencing for the offence of failing to provide Levai with the necessities of life his Honour was asked to take into account two offences of neglect of a child (AB and CB) by failing to provide adequate lodgings. See R v KJ [2015] NSWSC 767.
2. Three of the assaults concerned the incident on the train on 20 February 2013 when Levai was having difficulty reciting the alphabet and the fourth concerned her striking Levai multiple times with a spatula on the Easter weekend at Bulli. The reckless wounding offence concerned the striking of Levai with a wooden plank in the cabin at Bulli. The offence of consenting to Levai being used in the production of child abuse material related to the filming of the sustained assault of him by his siblings that was incited by Mr Maybir on 16 March. The offences of producing child abuse material relate to the filming of Mr Maybir and Levai "play" wrestling on 17 March, the filming of Levai doing the repetitive routine with the jacket on 20 April, and the filming of Levai running on the spot on 19 May. The offence of failing to provide Levai with the necessities of life concerned her social isolation of him and restricting his food and water intake in the months leading up to his death. The manslaughter offence was based upon Ms James' gross negligence in failing to obtain medical attention for Levai.
3. Unsurprisingly, Harrison J regarded most of the offences as serious. The reckless wounding and the manslaughter offences were regarded as most serious examples of their type.
4. A number of favourable subjective matters were taken into account in the assessment of sentence for Ms James. They included matters such as her early pleas of guilty, her assistance to authorities, her genuine remorse, good prospects of rehabilitation and unlikelihood of reoffending.
5. Ms James was convicted but no penalty was imposed in respect of the assaults on the train, filming the "play" wrestling, and filming Levai performing the jacket routine. For the other offences she received an aggregate term of imprisonment for 14 years with a non-parole period of 10 years and 6 months. The individual sentences that would have been imposed if not for the imposition of an aggregate sentence ranged from 9 months to 12 years. They had been reduced by 40 per cent on account of Ms James' pleas of guilty and assistance to authorities. Harrison J indicated by way of example that the sentence for the manslaughter would otherwise have been 20 years.

Related summary offences

1. The Crown determined to proceed no further against Mr Maybir in respect of a number of summary offences that had been referred by the Local Court to this Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). However, it was indicated by the Crown Prosecutor that it wished to proceed in respect of three offences. Mr Maybir entered a plea of guilty to an offence of possessing 13.18 grams of cannabis on 21 May 2013 and pleas of not guilty to two charges of neglecting to provide a child in his care with adequate and proper lodging. Those charges related to AB and CB and covered the period 24 January to 21 May 2013.
2. No submissions were made by counsel for either party as to these offences. I was told simply that the evidence concerning them could be found in the evidence that was adduced during the trial. The drug offence relates to the cannabis Mr Maybir tried to dispose of while the ambulance was on its way on the morning of 21 May 2013. The other two charges I take to relate to the children living in the wholly unsatisfactory environment of the music studio at various times between January and May 2013. As unsatisfactory as it was, whether it did not meet the description of "adequate and proper lodging" was not a subject upon which I received any assistance.
3. There is no suggestion that AB and CB were not provided with the daily necessities for a child of their age such as food, clothing, warmth, exercise, entertainment and the like. The toileting arrangements were far from ideal but otherwise I have a reasonable doubt that the children's lodging was inadequate or improper to an extent that should warrant conviction for a criminal offence.
4. The cannabis charge warrants conviction but, having regard to what will be imposed in respect of the offences on indictment, no penalty is warranted.

Personal circumstances of the offender

1. The evidence on sentence added very little to what I did not already know about Mr Maybir.
2. I now know that he has a criminal history comprising offences of contravening an apprehended domestic violence order for which he was placed on good behaviour bonds. These offences were committed on 14 September 2012 and between 1 December and 26 February 2013. He was the subject of one good behaviour bond from 11 October 2012 for a period of 6 months, it being operative at the time of his commission of the offences constituting Counts 1 to 5 and 8 to 10.
3. Mr Maybir has been in custody continuously since 20 September 2013 and so his sentence must be backdated to then.
4. Eighteen testimonials were tendered. The authors are family and extended family members as well as friends. They provide descriptions of Mr Maybir having experienced difficulties in his childhood years as a consequence of his parents' separation when he was about 10 years of age and further difficulties following the breakdown of his own marriage in mid-2012. The latter was said to be particularly difficult because Ms Brealey tried to prevent him having any access to his children; something he found particularly distressing. I note, however, that Mr Maybir gave evidence in the trial that he was still seeing his children at the time he met Ms James and that his access only ceased after she moved into the studio with him.
5. Mr Maybir is described as being a sincere, kind, respectful, generous, industrious, hardworking, forgiving, loving, peaceful, compassionate, gentle, loyal, protective and family oriented person who is concerned for the welfare of others and would help anyone in need. One person described him as being a "very loving and adventurous father" and another said he was "a decent human being with a strong desire to make a positive contribution to this world". A person with the title "senior pastor" praised him for his mentoring of marginalised and disadvantaged youth. Others speak of the positive impact he has had with children he has worked with. One of his sisters said "he has always been one to recognise and admit when he knows he was in the wrong". At least two people refer to Mr Maybir as being an honest person.
6. I accept that Mr Maybir is entitled to have his otherwise good character taken into account. The sustained and serious nature of his offending, however, means that the weight to be afforded to it is extremely modest.
7. The pleas of guilty in respect of Counts 2 to 5 and 12 were entered at the commencement of the trial. They had some utilitarian value but not a lot. I have taken that into account but in the context in which I am sentencing for a larger number of offences including one of murder I do not intend to quantify any reduction of sentence for those matters.
8. Mr Maybir did not give evidence on sentence. One of the reasons for adjourning the sentence proceedings for so long after the conclusion of the trial was to allow time for his lawyers to acquire some psychiatric material. In the end, however, none was tendered. That leaves me in the position of having no expert opinion that might explain why Mr Maybir behaved as he did towards Ms James and her children. There was a suggestion by his counsel that depression arising from his marriage breakdown, grief over not being able to see his children, and consumption of cannabis might provide an explanation. I am not prepared to accept that in the absence of expert evidence. Opinions expressed by authors of testimonials are no substitute.
9. It was submitted that I should take into account that Mr Maybir has been assaulted and otherwise mistreated whilst in custody, including by correctional officers. Mr Brady SC contended that "his time in custody to date has been harder than usual and is likely to continue in that manner". The problem with this is that the only evidence of it comes from Mr Maybir. He said, in effect, that he was mistreated in custody after having given the "fall from a pogo stick" version and thought the mistreatment would cease, or at least be less likely, if he gave the "fall from a coffee tin" versions. How this credibly explained the replacement of one innocent, but false, story with another innocent, but still false, story is impossible for me to fathom. There was evidence of a complaint having been made by telephone to the Ombudsman on 1 November 2013 who replied by letter a fortnight later saying that the matter would not be investigated because he was satisfied with action taken by gaol authorities to investigate it. There is no other evidence on the subject that does not depend upon the credibility of the offender.
10. Mr Maybir bears the onus on this subject and I am not persuaded on the balance of probabilities that he has, or will, experience hardship in custody over and above that of the average inmate.
11. There was no suggestion that I should extend leniency to Mr Maybir for having good prospects of rehabilitation or for being unlikely to reoffend. It was suggested that his pleas of guilty to certain offences could be regarded as a sign of remorse in relation to those matters but I think it was largely a sign of him accepting the inevitable. Aside from his prior good character and his pleas of guilty there is nothing else in terms of subjective matters that operates in mitigation of penalty.

Seriousness of the offences

1. The offence in Count 1 of encouraging Levai to insert his finger or fingers into his little brother's anus while being filmed is an unusual one on its facts. It came towards the end of a sustained period of Mr Maybir trying to persuade Levai to say something incriminating about his grandfather having sexually abused him. There seems to have been very little prospect of the child acting out a demonstration of something that was a figment of Mr Maybir's creation. For an offence of this type it falls towards the lower end of the scale of seriousness.
2. The assaults in Counts 2 to 4 are very serious examples of their type. The physical pain caused to Levai is obvious from the recording. The psychological impact upon each of the three children is incalculable. The recording of these offences which constituted Count 5, compared to the range of child abuse material the courts encounter, is modestly serious.
3. The assault of Levai with a spatula in the tent at Bulli (Count 8) is modestly serious. The assault with the stick on the beach (Count 9) is slightly more serious, given the circumstances attending it, including that it occurred when Levai had fallen exhausted to the sand. The assault occasioning actual bodily harm involving the punch to the boy's forehead when he again became exhausted whilst performing interval running in the camping area (Count 10) is more serious again.
4. The reckless wounding in company involving Mr Maybir assisting and encouraging Ms James to beat Levai on the buttocks with a piece of wood (Count 12) was despicable. He might not have delivered the blows, but his position of power and influence over Ms James and the fact that he held Levai down and encouraged her to keep beating him means, in my view, that he is at least as culpable as her. Then there is the fact that he discouraged her from seeking medical attention when the wounds became infected. This offence is easily within the mid-range of seriousness for an offence of its type.
5. The filming of Levai running on the spot on 19 May 2013 (Count 13) is towards the lower end of the scale of seriousness of offences involving the production of child abuse material.
6. The murder of Levai (Count 14) is an offence of great heinousness. The Crown contends that this is a case that warrants the imposition of the maximum penalty of imprisonment for life. The practical effect of such a sentence is that the offender would remain in prison for the balance of his natural life with no prospect of release on parole at any time.
7. A life sentence may be imposed if the circumstances are such that the case is within the worst case category. That does not mean that it is necessary to impose a lesser sentence if it is possible to envisage a worse case. A case will be within the worst case category if it is possible to point to features which are of very great heinousness and there is an absence of facts mitigating the seriousness of the crime. See R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unrep).
8. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court is to impose a sentence of life imprisonment if it is satisfied that the level of culpability of the offender is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. It is the combined effect of those four indicia that must be considered: R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at [35].
9. I am satisfied that in the months leading up to his death, Levai was subjected to cruel, degrading and inhumane treatment at the hands of Mr Maybir and to some extent - as a product of his insidious influence upon her - Ms James. Levai was not alone in being on the receiving end of this treatment but he was singled out among his siblings to receive the worst of Mr Maybir's extreme physical and mental cruelty. The reason that was so was because of the personality and behavioural manifestations of Levai's intellectual disability. The Crown's characterisation of Mr Maybir's attitude towards Levai as one of "disdain" is accurate; maybe even an understatement.
10. The months of abuse to which he had been subjected rendered Levai utterly submissive and defenceless to the physical and psychological power wielded by Mr Maybir. What happened to Levai on the morning of Monday 20 May 2013 remains largely a mystery locked away in the memory of only Mr Maybir. It may be that one element of his various false versions could be true - that Levai was expressing defiance to being punished. It may be that Mr Maybir was so enraged by this that he assaulted the boy. However, given the falsity of all of the versions he has given I am not prepared to give any credence to anything that he has said that is not independently verified.
11. All that can be said is that Mr Maybir grabbed the face of Levai and exerted such force with his single-handed grip that he caused the bruising and the parietal bone fracture seen by Dr Brouwer post-mortem. Mr Maybir also somehow inflicted one or more extremely forceful impacts to the back of the boy's head so as to fracture his skull and generate the subdural haemorrhage that caused his death. One possibility is that he gripped Levai's head forcefully with his right hand and slammed it one or more times into a hard surface. But whether that is how it happened I cannot be sure.
12. Upon Levai immediately becoming unconscious, Mr Maybir's reaction was to pick him up and carry him to his mother. Thereafter the two of them did nothing to summon medical assistance which might possibly have saved the boy's life. Their inaction was reprehensible in the extreme but the Crown did not contend that this was intended by Mr Maybir to ensure that death would result.
13. These circumstances describe a very bad case of murder. However, I am not satisfied that it is at the extremity that would justify the imposition of a life sentence. I have arrived at that conclusion primarily because of two matters. First, there is an absence of any evidence of planning or premeditation. That it occurred in the spur of the moment in a fit of sudden rage cannot be excluded as a reasonable possibility. Secondly, there is an absence of sufficient evidence of an intention to kill. It is a reasonable possibility that Mr Maybir's intention was limited to the causing of really serious bodily harm rather than to actually end the boy's life. The absence of those two features is not something that mandates a conclusion that the crime is not within the worst case category or that the offender's culpability is not at the extreme level referred to in s 61. They are, however, the principal reasons why I have concluded that a life sentence should not be imposed.

Family victim impact statement

1. Mr Michael James, Levai's maternal grandfather read a family victim impact statement to the court at the sentencing hearing. It is evident that the loss of Levai has been a heavy burden for the family. Regrettably, his siblings have been relocated to New Zealand where they live with their natural father which has meant that the James family have not seen them for a considerable time. All of these events have brought unimaginable grief and suffering for Levai's family and extended family. My sympathies go to them.

Other matters relevant to the assessment of sentence

1. The purposes of sentencing in criminal cases are multifarious and include the need to see that an offender is made accountable for his or her actions, to denounce the conduct, to recognise the harm caused and to ensure that there is adequate punishment. There is also the need to deter the offender and others from committing similar offences and to protect the community. Section 3A of the Crimes (Sentencing Procedure) Act also speaks of promoting the rehabilitation of the offender but in the circumstances of this case it is overtaken by the other considerations.
2. Significant weight must be given to personal deterrence and community protection in this case having regard to the fact that Mr Maybir remains completely unrepentant in respect of Levai's death and there is no indication of him acknowledging the enormity of his brutality and inhumanity.
3. There must be acknowledged a need to bear in mind as guideposts the maximum penalty and, where applicable, the standard non-parole periods prescribed for the offences. A standard non-parole period is defined as representing the non-parole period for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness: s 54A(2) of the Crimes (Sentencing Procedure) Act. It is, of course, necessary to take into account the full-range of factors in determining an appropriate sentence but I note that the standard non-parole period for the reckless wounding in company offence is 4 years and for the murder of a person under the age of 18 is set at a very high level of 25 years.
4. There is a need to assess sentences for the individual offences but also to ensure that the overall result is one that bears an appropriate relationship with the totality of Mr Maybir's criminality. This requires that there be some degree of accumulation which was conceded on his behalf.
5. It was contended that parity in relation to the sentencing of Ms James should be taken into account when sentence is imposed for the offences in common to both. I have borne that in mind in the assessment of the sentences of Counts 5, 8, 12 and 13 but on no account should Mr Maybir necessarily receive the same as what Ms James received. In relation to Counts 8 and 13 my assessment is that the sentences should be less than those indicated by Harrison J (absent the discounts) but that is simply the product of my own assessment being less than his.
6. Overall, however, Ms James had a lot more favourable subjective matters taken into account in her case. There was also the expert opinion evidence that she "very quickly fell under the influence of Mr Maybir to the point that she effectively subjugated herself, and delegated her parental responsibilities for her children, particularly the deceased, to him". I note also that a respected psychologist had likened Ms James' position to that of "members of a cult who become susceptible to loss of independence, unassertive, gullible, possessing a desire for spiritual meaning, all in ignorance of the mechanisms of ongoing manipulation". (See R v KJ at [49]-[50]). I believe that aptly describes what occurred.

Aggregate and indicative sentences

1. For the offences on indictment I am imposing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. It is necessary that I indicate the individual sentences that I would otherwise have imposed and, where a standard non-parole period is prescribed, the non-parole period ("NPP") as well. They are as follows: Count Offence Indicative sentence 1 Incite person under the age of 16, namely Levai aged 7, to an act of indecency towards CB knowing that the act was being filmed for the purpose of the production of child abuse material at Oatley on 8 March 2013 (s 61O(2A)) 1 year 2 Assault Levai at Woodpark on 16 March 2013 (s 61) 2 years 3 Assault Levai at Woodpark on 16 March 2013 (s 61) 2 years 4 Assault Levai at Woodpark on 16 March 2013 (s 61) 2 years 5 Produce child abuse material at Woodpark on 16 March 2013 (s 91H(2)) 2 years 8 Assault Levai at Bulli on 31 March 2013 (s 61) 1 year 9 Assault Levai at Bulli on 31 March 2013 (s 61) 1 year 3 months 10 Assault Levai occasioning actual bodily harm at Bulli on 31 March 2013 (s 59(1)) 3 years 12 Reckless wounding of Levai in company at Bulli between 12 and 20 April 2013 (s 35(3)) 4 years (NPP 3 years) 13 Produce child abuse material at Oatley on 19 May 2013 (s 91H(2)) 1 year 14 Murder of Levai at Oatley between 20 and 21 May 2013 (s 18) 38 years (NPP 28.5 years)

Orders

1. Possession of a prohibited drug: Convicted but no penalty imposed (s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
2. Neglect to provide adequate and proper lodging for a child in care: On each, verdicts of not guilty.
3. Offences in Counts 1 to 5, 8 to 10 and 12 to 14 on indictment: convicted and sentenced to imprisonment for a term of 42 years with a non-parole period of 31 years 6 months. The sentence is to date from 20 September 2013. The non-parole period will expire on 19 March 2045 at which time Mr Maybir will become eligible for release on parole. The total term will expire on 19 September 2055.

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: 04 March 2016