R v McMaster [2007] VSC 133

2 The maximum penalty for manslaughter is 20 years' imprisonment. In addition to that charge, I must also sentence you on the count of intentionally causing injury for which a jury has found you guilty. Here, the victim was Cody's mother, Belinda McMaster, and the maximum penalty is ten years' imprisonment.

3 In the case of the count of manslaughter, the act by which the crime was constituted was not only a conscious and voluntary act on your part, but was also one that was unlawful and dangerous; dangerous, that is, in the sense that a reasonable person in your position must have realised that Cody was thereby exposed to an appreciable risk of serious injury.

4 It is also relevant to note the context in which the fatal assault occurred. It was one of a series of physical attacks on Cody that were systematic and serious. Some of them were brutal. You have not been charged with these other assaults, and I therefore cannot and do not impose any punishment for them. On the other hand, in this case the context necessarily affects my response to submissions that you are remorseful.

5 The context is also important for another reason. I am required by law to take into account the nature and gravity of the offence. Just as any sentence must reflect the fact, if it be the fact, that the offence was an isolated and aberrant act, out of character with the typical behaviour of the offender, so must a sentence reflect the fact, if it be the fact, that the offence for which it is imposed was one of a series of acts of cruelty inflicted upon a young and defenceless child who, as a result, is now dead. In these circumstances I must emphasise that, although I intend for this reason to describe the context in some detail, I must not and do not sentence you for any offences other than the one count of manslaughter and the separate count of intentionally causing injury.

6 Cody was born on 10 December 2000. He was therefore five years and three months old when he died. He was living with you and your partner, his mother Belinda McMaster. So too was Cody's younger brother, Christian Hutchings. The two children had been in your care, and that of their mother, since you came to live with all three of them in June 2005.

7 The relationships you as a new family member shared with Belinda and her sons were on occasions during the following nine months relatively normal. Early in that period, in particular, you were as happy as you have been in your lifetime; and this was reflected in the positive inter-action you then enjoyed not only with her but with her children. You were affectionate towards them all. You joined the boys in their play, and accompanied the family on outings. You exchanged presents. Christmas 2005 was spent happily together, with Belinda's mother joining you.

8 It is significant however that during this period you were a consumer of both illicit and prescribed drugs. If one drug was not available, you took another. You put this fact forward as at least a partial explanation for what you concede is totally unacceptable conduct. It is therefore necessary to examine the part that drugs played in the events giving rise to the two offences for which I must sentence you.

9 According to a report dated 23 July 2007 prepared by a consultant forensic psychologist, Elizabeth Warren, you commenced using alcohol and cannabis at the age of 12 or 13. Three or four years later you moved to heroin. In January 2004 you decided to cease your use of that drug, and were prescribed Buprenorphine to assist you to do so. Your rejection of heroin may have been praiseworthy; but, if so, it was largely cancelled out when, ten days later, you commenced using amphetamine. As the report of 23 July says, "amphetamine ... can be combined with Buprenorphine without the adverse effects that occur when Buprenorphine and heroin are used together."

10 The combination nevertheless had its own adverse effects. Drugs induced in you occasional feelings of paranoia and, more especially, an inability to control your anger. This inability, it was submitted on your behalf, included an inability to understand the degree of the force of the assaults you had, by the time the family moved to Hoppers Crossing in or about December 2005, begun to inflict on the young child in your charge. So, although you may have yourself suffered some adverse consequences of your continued involvement with drugs, it was Cody, not you, who was the true victim of them.

11 You told the police that you were "sort of" bothered about your assaults on the young boy. You likewise told Ms Warren that on several occasions you suggested to Belinda that you should stop your joint habit of celebrating by another round of amphetamine consumption the arrival of the income you received each fortnight. When she responded that this was merely a little treat for both of you, your protests fell silent. For her part, she also from time to time urged that you seek help. You took some uncertain steps in that direction, but they had come to nothing by the time that Cody died. No substantive help was obtained after it became apparent to Belinda and, I have no doubt, to you, that your behaviour towards Cody was unacceptable. In doing so little to modify, let alone remove, the influence of drugs on your behaviour, you put your personal interests ahead of the children with whose care you and Belinda were, by your association together, entrusted.

12 In the weeks, perhaps as many as eight, before Cody's death, your relationship with him became progressively more dysfunctional. He was not an easy child to manage. He suffered from Williams Syndrome. This is a genetic condition that results in delayed development and associated behavioural difficulties, impaired motor skills, poor sleeping and irritable behaviour. Nevertheless, it was not these aspects of Cody's personality that caused your difficulties with him. As Elizabeth Warren notes in her report of 23 July, there are in your case "no indications of personality clash that sometimes provokes aggression and animosity between child and caregiver."

13 The source of the problem seems to be more complicated. Ms Warren describes the stangely unfortunate connection between your affection for Cody and your view that, because you demonstrated this affection for him, he should have reciprocated by reacting quickly to whatever you asked of him. According to the evidence, his failure to respond with the speed that you thought appropriate was a significant trigger of your outbursts of anger. And while Williams Syndrome may have played a part in any tardiness in Cody's responses, your expectations of a five year old child were in any event totally unrealistic and inappropriate.

14 Your failure to appreciate the realities of childhood gave rise, it seems to me, to another reason for your conduct towards Cody. As you told the police, if his behaviour irritated Belinda, she would yell. Your solution to this problem was to slap the boy, or even to strike him with a belt modified for use as an instrument of punishment. To this extent you assumed on her behalf the role of disciplinarian. As Ms Warren records in her report, you became the "strap man" and "there was not sufficient internal or external censure of [your] actions to change the situation." The report also records that Cody's pleas: "Don't call the strap man, Dad" were not sufficient to deter the brutality of your behaviour in circumstances in which the boy's mother approved some aspects of your methods of discipline, while for your part you were not prepared to exercise self-control.

15 I accept that, in that household with those family members, the pressures upon you were sometimes very considerable. But so they are, at least at times, in almost every family. One of the purposes for which sentences must allow is deterrence against your reaction to those pressures.

16 For reasons that have not been fully explained, your outbursts became more and more frequent during the last weeks of Cody's life. It was submitted on your behalf that they were spontaneous and therefore unpremeditated. Perhaps that is true of some of them. But you not only anticipated a continuation of your role as disciplinarian, but prepared for it by modifying a belt to become a heavy strap for the corporal punishment of a very young and defenceless boy. I am satisfied beyond reasonable doubt that over the final fortnight you repeatedly, and increasingly often, unlawfully assaulted Cody by slapping him to his head, trunk and limbs with your hand and with the modified leather belt. You sometimes expressed remorse after an assault. Far from any remorse modifying your treatment of Cody, however, it became progressively more reprehensible. To the extent that you experienced remorse during Cody's lifetime, therefore, that remorse was transient and ineffectual. It cannot now be taken into account in your favour.

17 In the last days of Cody's life, your behaviour towards him moved from being cruel to something even worse. You did not punch or kick him, but the back-handed and open handed blows you inflicted on him were savage both in force and frequency. The same must be said of the use of the strap. The post-mortem examination revealed approximately 160 bruises on Cody's body. They were visible on his head, his neck, his chest, his abdomen, both arms and both legs, his penis and his buttocks. In addition, he had a large gash to his forehead, a tear to the tissue that connects the inside of the upper lip to the gum, and two fractures of the skull. Associated with one of these was extensive haemorrhaging around the back left area of the head. One of the fractures was, in the pathologist's opinion, fresh.

18 The evidence is that, a fortnight or so before he died, Cody failed to obey your order to him to sit down and stop fidgeting. For this minor misdemeanor you slapped him on the chest and in the stomach, leaving red marks. Cody got up, only to stumble into an archway of a door, hitting his head as he did so. The scene was repeated, in essence, on the day of Cody's death. That afternoon, as the result of a blow from you, he hit his head on the toilet bowl, causing the gash to his forehead to which I have already referred. When, not surprisingly, he failed to sit still on the sofa after this incident, you hit him hard in the stomach and chest area and then sent him to his room. On the way, he stumbled and hit his head on a wall.

19 The toilet incident did not cause either of the two fractures to the skull observed by the pathologist. I also note that it is quite possible that neither fracture was associated with the occasion in which Cody stumbled into the wall, or the occasion in which he hit his head on the archway to the door. The fractures may have been caused by quite different falls - from a bicycle, or down the steps leading into the back yard of your home. I therefore wish to make it clear that I do not sentence you on the basis that you were responsible for either fracture. I refer to them because they were a significant aspect of the pathologist's findings, and because they form part of the context surrounding Cody's death; a context that demonstrates, it seems to me, not merely a failure of insight into Cody's medical circumstances, but a callous disregard for them. The application of force that killed Cody, and for which you have pleaded guilty and must be sentenced, was initiated by someone who was willfully and callously blind to the consequences of the numerous incidents of trauma, some accidental but most not, to which his young body was subjected.

20 A child's outward reaction to an internal injury will depend on a number of circumstances, including the personality of the child. It follows that different children will present with different observable reactions to similar internal injuries. The seriousness of an internal injury to a child is for this reason often difficult to assess, particularly if the observer has no medical expertise. The problem is compounded by limitations in a child's ability to describe how he or she feels. I accept that, for these reasons, you never during Cody's lifetime had actual knowledge of either of the two fractures to his skull. Nor did you have actual knowledge of the internal damage to his abdominal region. Nevertheless, the circumstances surrounding what seems to have been the fatal assault on Cody, together with the events of the last day of his life, point to your complete and inexcusable failure to inquire into the effect upon him of, let alone provide him with proper treatment for, the trauma to which he had been subjected.

21 Cody died from the application to his abdomen of force consistent with an adult's foot being thrust into his stomach region. You did this to him. You did it not once, but twice. You told the police that when Cody was sitting down you pushed him in the stomach with your bare foot with the result that he was forced into a lying position on the ground. The thrust you generated in this way was, you said, harder than you thought; and you did what you did although you had seen bruises on him at different times beforehand. You knew that you had caused at least some of those bruises. Unbeknown to you, the first incident when you used your foot on Cody was probably the act which resulted in his death some time later.

22 The pathologist described the injuries that were then caused. He found an extensive area of haemorrhage involving the entire mesenteric structure and including 350 millilitres of blood. The blood had been present for sufficient time to allow it to change colour from red to dark brown or black, and to allow to develop the septicaemia and peritonitis from which Cody probably died. This indicates that the trauma that caused the fatal bleeding occurred some time before the day of death. The source of the blood was a shearing tear to the mesenteric root. Two areas of the liver were also torn. All these structures are deep seated, and the force necessary to damage them must be assessed accordingly.

23 The pathologist twice described the degree of force involved as "quite severe". I am, on the basis of the nature of the relevant internal injuries, satisfied beyond reasonable doubt that you subjected Cody either to a very hard push, or allowed at least some of your weight to be placed on his stomach as he lay on the ground, so that you partially stood on him. Another point should also be made. Whether you pushed Cody with your foot, or partially stood on him, your action indicates a degree of contempt for the child and, likewise, a total disregard for the humiliation that such action would cause. But you frequently increased the element of humiliation inherent in each of your assaults by your choice of the part of the body to target. While a blow to the buttocks may generate pain, and may itself be totally inexcusable, it does not generally carry with it that element of humiliation that almost necessarily accompanies being struck across the face. Yet you frequently subjected both Cody and his mother to just such humiliation.

24 The second occasion on which you planted your foot in Cody's stomach also requires special mention. It was the day he died. You knew, on that day - 25 March last year - that you had thrust your bare foot in his stomach once before. You knew that he had, on that first occasion, asked you to stop. You also knew that, on about 18 March, he had fallen off his bicycle. As the handlebars hit the ground, his stomach hit the handlebars. You knew or ought to have known that his abdomen might thereafter be especially tender. Yet, after that accident, you had frequently slapped him in that region of the body without inquiring how tender it might be. You observed that, after you with your foot had on 25 March pushed Cody to the ground, he grabbed his stomach. You were aware that your blows were often more forceful than you appreciated at the time. You had noticed fear in Cody's eyes when he looked at you. If, in your moments of reflection, it occurred to you that you might be the cause of real physical or psychological damage to a child in your care, you did nothing to change your behaviour, and made no attempt to provide Cody with proper medical attention.

25 The events of 25 March 2006 exemplify the general context in which you are to be sentenced. That context is relevant both in relation to the unlawful and dangerous act from which Cody died, and the intentional blow that caused injury to Ms McMaster. The day began badly. You had gone to bed the night before with a sore arm. It seems that this was the result of your inappropriate use of Buprenorphine, which you injected into your arm instead of using in accordance with the prescribed method. Ms McMaster bumped your arm during the night. This hurt. It made you angry, and you left the bed to sleep on the couch. Next morning, you argued with Ms McMaster about it. Sometime later, because Cody had failed to answer you when you spoke to him, you sent him to the laundry, which served as the "naughty room". You then decided that this punishment was insufficient. You followed Cody into the laundry. During the following minutes you slapped him very hard to the face, chest and stomach with your hand, and to the buttocks and legs using the belt that you had modified for the purpose. When you returned to the lounge, Ms McMaster suggested that you should get help to manage your anger. At this, you slapped her hard in the face and on the back and side of the head and spat on her, while being equally aggressive verbally. When she raised her arms in self-defence, you struck her side with the palm of your hand.

26 For a time during the early afternoon, you were alone with Cody and Christian while Ms McMaster went shopping. It was during this period that Cody gashed his forehead on the toilet bowl. When Belinda returned, she told you that the beltings had to stop. Your response was to hit her three or four times hard in the face with your open hand. She was in pain, and terrified, as a result. You then broke down and said you were sorry.

27 Your anger did not subside for long. Belinda allowed Cody to lie on the sofa. But he was restless. You gave him three or four hard back-handed slaps to the stomach and chest before sending him to his bedroom. It was then that he stumbled into the wall and again hit his head. Although it ought to have been plain that all was far from well with him, you struck him again after he reached the bedroom, simply because he would not or could not keep still. This behaviour was sadistic. Altogether, you hit Cody between 20 and 25 times on that last day of his life in attacks that were savagely cruel. When Cody's mother suggested that he be taken to the doctor, you disagreed, saying that if the boy's bruises were seen by a medical practitioner, both Cody and Christian might be removed from her custody. In taking this position when it was clear that Cody required medical attention, you put your own interests above his, while admitting that he had been the victim of serious ill-treatment.

28 At about 5.15 pm, Cody's condition had deteriorated to the point that you had no option but to seek emergency help. For the first time, you showed signs of genuine remorse. But it was too late for Cody.

29 A medical examination of Belinda McMaster revealed that she had multiple bruises. They were on her right forehead, her left cheekbone, her right cheek and under her right eye, her left wrist, the outer aspect of her left upper arm, the back of her left elbow, on her back above her right hip, her left rear thigh, her right knee, the inner aspect of her right lower leg, and the outer aspect of her left leg. The assault which is the foundation of the charge of intentionally causing injury must be seen in the context of her attempt to intervene on Cody's behalf, and in the context that it was one of a number of physical attacks on her involving, in addition to its purely physical aspect, viciously humiliating behaviour.

30 The impact of the offence on any victim of the offence is another matter to which I must have regard in determining the appropriate sentence. I have read the victim impact statements that have been tendered. Some of the matters dealt with in them are not admissible in evidence, but I have had regard to the balance of each of them. They speak of the pain and sorrow Cody's death has caused, and of the way he touched their lives. They acknowledge the difficulties associated with his Williams Syndrome, but also describe his delightful charm. Thoughts of the terrible suffering he must have experienced are almost impossible for them to bear.

31 You have a considerable number of prior convictions. None, however, involved violence, and the longest term of imprisonment imposed was two years. I do not propose to increase by reference to your prior convictions the sentence I intend to impose. I nevertheless note that, unless you finally and conclusively remove yourself from the influence of drugs, your record does not strengthen one's hopes for your rehabilitation.

32 I am required to take into account your plea of guilty. This was first put to the Crown on 15 February this year, or thereabouts. As a result of the acceptance of that plea by the prosecution, the community has been spared the cost and inconvenience of another trial. The fact of the plea of guilty, coupled with other indications, satisfy me that, in contrast to your empty expressions of sorrow during Cody's life, you are now remorseful. According to Ms Warren, whose report I accept, you are now preoccupied with recollections of the fear you saw in Cody's eyes. You are drug free, having given up even cigarettes. You are intelligent, and if you abstain from drugs and employ your intelligence and your common sense, your prospects of rehabilitation are at least reasonable. Depending on you, they may be a good deal better than that.

33 These factors having been taken into account by me, the sentence I intend to impose for the count of manslaughter is shorter than it would otherwise be. On the other hand, this was a killing the nature and gravity of which can hardly be over-emphasised. You were in a position of trust, and of power. You abused both, at the cost of a young child's life. The act of standing over a five year old child who is seated on the ground, and then partially standing on his abdomen or pushing your feet into his stomach, with such force as to do fatal damage to his abdominal cavity, is one that - even when seen outside the brutal context in which it took place - is of itself utterly abhorrent.

34 All life must be protected. Because of their vulnerability, young lives demand special measures to ensure their safety. The death of a child as the result of an assault by a mature adult in the context of a sustained period of abuse is an affront to any civilised community. One measure open to the courts is to impose sentences that will act as a general deterrence to those who might be tempted to abuse the young and powerless. The systematic cruelty to which you subjected Cody is absolutely and unequivocally intolerable. In my opinion, the appropriate sentence on the count of manslaughter is twelve years and six months' imprisonment.

35 The assault on Belinda McMaster occurred at least in part as a result of her attempts to protect her child. It was not an isolated act. It was designed to cause pain and humiliation. It was a separate assault on a different person to the assault that killed Cody. The sentence of six months' imprisonment I impose for that offence must be served cumulatively upon the twelve and a half years already imposed. The result is a total effective sentence of thirteen years imprisonment. I direct that you serve ten years of that term before being eligible for parole. I declare that the period of 355 days be reckoned as already having been served under this sentence, and direct that this declaration and its details be entered in the records of the Court.