R v Mietto [2002] VSC 551

5. The Crown case against you on sentence proceeds on the basis that you caused the death of Jonathan Guiver either by unlawful dangerous act or gross negligence. It is contended on your behalf that the infliction of the injuries which caused his death was wholly accidental.

8. The issues for determination on sentence also include whether a number of other injuries observed on the body of the deceased during post mortem examination were inflicted by you and whether they should be regarded as aggravating features relevant to sentence. Those issues require proof beyond reasonable doubt[1].

11. Jonathan Guiver was born on 22 December 1997 to Sandra Ilona Guiver and George Christopher Guiver at the Mitcham Hospital. He was their only child. Sandra and George Guiver had separated on 25 November 1997, some four weeks before the birth, and they divorced shortly afterwards. Thereafter Sandra Guiver had principal custody of the child, although George Guiver had access to the child during weekends and the child sometimes stayed with George Guiver during weekends.

14. In or about January 2001, Jonathan began to attend St Luke's Pre-School kindergarten in Essex Road, Mt Waverley on Wednesday afternoons and Friday mornings. Sandra Guiver delivered him to and collected him from the kindergarten before and after those sessions. The child otherwise spent a considerable amount of time in the care of his maternal grandmother, May Ack Hing, who lived approximately 15 minutes drive from Sandra Guiver's home. May Ack Hing indeed played a substantial role in the care and upbringing of her grandson. Although Sandra Guiver had principal custody, May Ack Hing cared for the child whenever Sandra Guiver was at work during the week, or if Sandra Guiver were out with friends, and Sandra Guiver and the child often ate meals and slept over at May Ack Hing's home.

17. You first met Sandra Guiver at the Over 28 Nightclub in Doncaster in January 2001. A strong relationship developed after a relatively short period of time and at Easter 2001 you moved into Sandra Guiver's home with her and you began to live together. At that time you were working as a house painter and Sandra Guiver as a bookkeeper.

20. On the morning of Friday 8 June 2001 Sandra Guiver delivered Jonathan to kindergarten and later collected him from kindergarten at approximately 11.45 am and took him to May Ack Hing' home. She arranged with May Ack Hing that Jonathan should stay with May Ack Hing until the next day and she left to lunch with friends. You returned home that night from work and you and she spent that night together at home.

23. On the morning of Saturday 9 June 2001 Sandra Guiver drove you to the Eastland Fitness Centre in Warrandyte Road , Ringwood, where it was your habit to work out, and you arranged that she should return to collect you at around 2.00 pm after you had completed your work-out.

26. From there Sandra Guiver drove to May Ack Hing's home and she and May Ack Hing and Jonathan then drove to the McDonald's restaurant in Burwood Highway, Burwood, where they lunched together and Jonathan played on the McDonald's playground equipment. The child was apparently healthy and happy throughout.

29. Having driven May Ack Hing to her home, Sandra Guiver drove with Jonathan to the Eastland Fitness Centre and collected you at approximately 2.30 pm, and all three of you them drove home where you spent the remainder of the day relaxing and making arrangements by telephone with a friend for you and he to meet in Carlton later that evening.

32. At about 5.30 pm Sandra Guiver prepared an evening meal and you and she and Jonathan ate together. After watching television together with Jonathan, at about 8.30 pm Sandra Guiver drove you to Carlton so that you could meet your friend and spend the evening with him. Jonathan travelled in the car in the child restraint harness fitted to the back seat.

35. On the way to Carlton, you had Sandra Guiver drive into the Mitcham Hotel and you purchased a four-pack of Wild Turkey bourbon whisky and Coke and you consumed two of the bottles from the pack by the time you reached Carlton. You kept the remainder of the pack with you and consumed it in circumstances to which I will later come.

38. After delivering you to Carlton at about 9.00 pm, Sandra Guiver returned home with Jonathan and put him to bed with a cup of hot milk at about 9.30 pm. Again, at that time the child appeared to be healthy and happy.

41. You spent the remainder of the evening in the company of your friend driving to various places in and around the City and, in your case, drinking. Whilst he drove, you consumed the remainder of the four pack and later in the evening when you stopped at the La Porchetta restaurant in North Melbourne for a pizza, you ordered and consumed two Crown Lager stubbies. Later still, as your friend drove you home to Sandra Guiver's house, you asked that he drop you off at the Manhattan Hotel in Vermont where you ordered and drank at least one more beer.

44. You got home to Sandra Guiver's house at approximately 1.30 am and she rose from bed in order to let you in. She then returned immediately to bed and left you alone. You made yourself a cup of tea and finally went to sleep on the couch in the sitting room.

47. I cannot be sure what happened after that until about 5.30 am, except that at some time during the four hours after you arrived home, and while Jonathan was still with you, Jonathan sustained blunt trauma injury to his head resulting in a fractured skull and sub-dural haemorrhage from which he later died.

50. According to the version of events which you would now have the Court accept, you slept on the couch and awoke shortly before 5.30 am, and not long after that you heard Jonathan call out for attention. It is said on your behalf that he indicated to you that he wanted to play with his toy football, which was kept out in the back garden, and that you took him out there so that he could recover it. Thereafter, it is said, you picked Jonathan up in order to carry him back to his bed, with the intention of leaving him in bed to play with his ball, but as you got to his room and while still holding him in one arm, face towards you, he dropped the ball and you went down on one knee in order to pick it up. It is said that you accidentally went down on your knee too quickly, with the result that the back of Jonathan's head struck the thinly carpeted concrete floor, and it was that which inflicted the blunt trauma injury which was the cause of death.

53. I do not find that version of events to be persuasive. It is now plain that you were the first to attend on Jonathan on the morning of 10 June 2001 and that you did something which resulted in the blunt trauma injury later found to have caused Jonathan's death. But I am not satisfied, even upon the balance of probabilities, that it occurred in the fashion suggested on your behalf. An expert report of consultant pathologist Dr R. Byron-Collins tendered on your behalf contains views which are not inconsistent with its possibility, but the expert evidence of specialist pathologist Dr Michael Burke establishes that it is highly improbable that it occurred in that fashion. It seems to me also to be of significance that your version of events did not surface until long after you were arrested. And it is criticised by the Crown, I think with some justification, as showing signs of being crafted to fit the facts.

56. Despite that you once denied it, it is now clear that at approximately 5.30 am you ran into the master bedroom where Sandra Guiver was sleeping and woke her. You told her that she should check on Jonathan because something appeared to be wrong with him and you did not know what it was. She came with you immediately to Jonathan's room which was towards the rear of the house. You also now admit that even before she could examine the child you said to her that if any one were to ask what had happened, she was to say that it was part of her routine to check on the child at that hour of the morning and that it was she and not you that first discovered the condition of the child. The fact that you should say such a thing is cause for doubt in itself.

59. You then told Sandra Guiver to call an ambulance and as she went to do so you carried Jonathan into the sitting room where the telephone was located. As she spoke to the ambulance service, you laid down Jonathan on the sitting room floor and in the process his head was allowed to strike the floor a second time causing a further but non fatal blunt trauma injury. You then attempted to administer CPR in accordance with instructions which were being given by the ambulance operator by telephone to Sandra Guiver as you waited for the ambulance to arrive and at least at that stage you did all you could to revive him.

62. Upon the arrival of ambulance officers Jonathan was taken by ambulance to the Box Hill Hospital where a team of specialist emergency and paediatric medical personnel attempted without success to revive him, and at 6.44 am Jonathan was pronounced to be dead. The immediate diagnosis of the cause of death was sugar diabetes but as was later determined by post mortem examination, the true cause of death was sub dural haemorrhage the consequence of the blunt trauma impact inflicted upon his skull when you were with him.

65. Sandra Guiver spoke to you briefly by telephone from the hospital and told you that Jonathan was believed to have died from diabetes, and that she intended to go to May Ack Hing's home to stay with her. At about 5.00 pm or 6.00 pm, however, you met her by arrangement at the shops close to her mother's house and on that occasion you told Sandra Guiver that she had to protect you. She appears not to have understood what you meant by that and, perhaps understandably in the circumstances, she did not make any inquiries, but after a short time she left you and returned to her mother `s home. The fact that you made such a request even after being informed that the initial diagnosis of the cause of death was diabetes is another thing which leads me to doubt your version of events.

68. On the next day Sandra Guiver returned to her home at Vermont and found you still there and she told you then that she had been interviewed by the police at Box Hill Hospital as to the cause of death of Jonathan. On that occasion you responded that she should keep saying the same things to people, meaning that she should keep saying that she and not you had first discovered Jonathan in a distressed state in the early morning of 10 June 2001. That is another thing which makes me doubt the version of events which is now presented on your behalf.

71. The post mortem examination was conducted on 12 June 2001 and it was then determined that the cause of death was head injury and that multiple sites of bruising seen to the scalp and bruises seen to the sides of the chest indicated other injuries of a non-accidental nature inflicted over a period of time.

74. On 13 June 2001 you were arrested and charged with Jonathan's murder. When first interviewed by police you said that you had arrived home at about 12.30 am or 1.00 am and that when you arrived home Sandra Guiver had let you in and went to check on Jonathan. You told the police falsely that you then went to bed and it was but a short time later that you heard a scream from Sandra Guiver from Jonathan's bedroom, and that when you went into Jonathan's bedroom you found him unconscious and Sandra Guiver in a state of shock. It was only much later that you were prepared to admit that you had played some part in Jonathan's death. The fact that you should concoct an elaborate story of the kind which you presented to the police and maintain it for so long is yet another reason to doubt the version of events which is now presented on your behalf.

77. After your arrest surveillance devices were placed in your cell at the Melbourne Custody Centre and in a conversation monitored on 9 July 2001 you were recorded as saying that you knew what had occurred; that you had told Sandra Guiver to come to Jonathan's bedroom because there was something wrong with him; and that you had told her that you had found Jonathan in that condition. In a later taped telephone conversation with Sandra Guiver you said that Jonathan's death had been an accident and that you had dropped him.

80. It is submitted on behalf of the Crown that the lies which you told to the police and the occasions on which you prevailed on Sandra Guiver to lie about the circumstances in which Jonathan was first discovered, bespeak a consciousness of guilt[2]. It is also submitted on behalf of the Crown that the existence of other injuries found during post mortem examination enhances the probability that the harm which you caused Jonathan on 10 June 2001 was not wholly accidental. The Crown argues accordingly that, even though there is no direct evidence of the mechanism of infliction of harm, I should sentence you on the basis that you acted deliberately, albeit without intent to inflict really serious physical injury. That is to say that what is called for is a sentence imposed on the basis that you are guilty of manslaughter by unlawful dangerous act.

83. I am not prepared to adopt that course. It is not permissible to proceed on a basis which is adverse to you unless it has been established by proof or is admitted and, even if your mendacity bespoke a consciousness of guilt of some kind, I do not consider that it would be proof against you of an intent to act or even as sufficient to corroborate other evidence that suggests deliberate harm. Having regard to your age and the seriousness of what had occurred, I think it reasonably possible that you lied because you feared the consequences of having caused harm to Jonathan by grossly negligent conduct, rather than because you knew you had done something which was worse.

86. The evidence before me is also not sufficient to permit me to find that you were responsible for the other injuries observed on the body of Jonathan during the post mortem examination. The medical evidence suggests that they could have been the result of child abuse and there is some indication in evidence of statements made by Jonathan before 10 June 2001 that you may have had something to do with their infliction. But even if the evidence of Jonathan's state of mind were admissible[3], which I doubt, I consider that the totality of the evidence as to the cause of those other injuries falls significantly short of demonstrating beyond reasonable doubt that you were to blame. Accordingly, I exclude them from consideration.

89. Since I do not accept your version of events, and I am not persuaded that I should adopt the Crown's analysis, I am left to sentence you on the basis of a knowledge of the relevant facts which is significantly incomplete. In the circumstances, I think that I all I can do is proceed bearing in mind that, although there is no general requirement to sentence you on the view of the facts most favourable to you, that is the practical effect of the requirement of proof beyond reasonable doubt of facts which tell against you[4].

92. I am satisfied on the criminal standard that you caused the death of Jonathan by manslaughter by gross negligence, resulting in blunt trauma injury to his skull and consequent sub-dural haemorrhage. I am not satisfied on the criminal standard that there are any aggravating circumstances associated with previous abuse of the child. Equally, however, I am not satisfied, even on the balance of probabilities, that there is anything in the circumstances surrounding Jonathan's death that ameliorates the undoubted seriousness of your actions in causing his death by gross negligence.

95. I turn to your personal circumstances. You are 27 years of age having been born in Melbourne on 17 May 1975. Your parents separated when you were approximately 12 years old and thus you were subjected to a somewhat strained and otherwise less than perfect upbringing. Your father, who is now 60 years of age, migrated to this country at the age of 20. He has worked hard all of his life and is still working as a painter and he has an unblemished record. Your mother, who remarried following separation from your father, is aged in her mid 50's and works as a cook. You have one brother who is 32 years of age who still lives with your father and he works in maintenance. You enjoy good relations with both your father and your brother.

98. You were raised in Box Hill, Upwey and Croydon and you attended Box Hill Technical School for years seven and eight and Ringwood Technical School for years nine and 10. Since leaving school you have worked in variety of trades including landscape gardening, fibre glass moulding, plumbing and painting, which was the work in which you were engaged at the time of your arrest, but despite your initial ambitions you have never qualified in a trade.

101. As I have recorded already, you met Sandra Guiver in January 2001 and established a relationship within a relatively short period of time, and at or about Easter time you moved out of your father's home where you were then living and began to cohabit with Sandra. She is considerably older than you.

104. Throughout the time that you lived with her there were some fights between you. On at least one occasion you hit her during the course of a dispute. It seems possible but I am unable to conclude that you sometimes resented Jonathan's claims upon Sandra's affections, and she on the other hand sometimes resented your propensity to leave her at home and to go out drinking with friends.

107. You drink alcohol, particularly bourbon and beer, apparently sometimes to excess, and although you do not regard yourself as having a drinking problem, I think it is significant that you had had a considerable amount to drink on the night before Jonathan's death. You also smoke cannabis and, while you regard yourself as only a "social smoker" of that substance, I also think it is significant that you had smoked cannabis on the night before Jonathan's death.

110. It is said that since the death of Jonathan you have shown considerable remorse over what you have done. In a psychological assessment conducted by Mr Ian Joblin , forensic psychologist, of 11 November 2002 Mr Joblin opines that the issue of remorse is apparent not only from the letters which you have sent to Sandra Guiver to explain that the death was an accident but also from the course of interview. He reports that you berated yourself on numerous occasions over the offence and indicated that, while the Court can deal with you, you consider each day the seriousness of the offence and that, even after you are released, the psychological impact of having taken a child's life will remain with you. Reliance is also placed upon the remorse which you have expressed directly to Sandra Guiver in telephone conversations with her.

113. On the other hand it is apparent to Mr Joblin that the psychological effects of Jonathan's death upon you have not been so great as to impel you to seek assistance from mental health officials or to cause you any loss of sleep or other deprivation. I also note that, although you pleaded guilty to manslaughter and thus saved the State the expense and the persons affected the anguish of a trial, the plea did not come until very late before your trial was to begin and that those associated with Jonathan were thus subjected to the strains of a committal hearing[5].

116. The law of manslaughter by gross negligence covers a broad range of possible circumstances, stretching from cases which are little worse than excusable accident up to cases involving acts and omissions of a most culpable variety. In my opinion, your plea of guilty to manslaughter by gross negligence and such of the facts as have now been proved puts your case somewhere towards the less serious side of the middle of that range.

119. Nevertheless, as was said by Gleeson CJ (of New South Wales) as his Honour then was in R v Blacklidge[6], the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. To that may be added the considerations of general deterrence encapsulated in the observations of Coldrey J in R v Parker[7] that, insofar as they are able to do so, courts by the imposition of appropriate sentences must seek to protect vulnerable and defenceless young children by deterring those who may otherwise cause them harm.

122. In the plea made on your behalf, Mr Shwartz has identified the following considerations as bearing in your favour on the sentence which should be imposed:

* First, that you were lovingly disposed towards Jonathan while he was alive and that the character evidence given on your behalf by Ms Basich shows you to be someone who would be disinclined deliberately to hurt a small child.

* Secondly, that in so far as it may be thought that your conduct towards Jonathan while he was alive was ever less than satisfactory, it is to be seen against your background of a childhood strained by the absence of a mother or indeed any woman within the home and the frequent absence of a father driven to work long and hard hours in order to provide for his family.

* Thirdly, that you are truly sorry and filled with remorse for the loss of Jonathan and the pain which his loss has caused to Sandra Guiver and May Ack Hing and George Guiver.

* Fourthly, that although on your version of events, a jury may have been prepared to acquit you of culpable homicide, you pleaded guilty of manslaughter to save Sandra and May and James the anguish of a trial.

* Fifthly, that you are not involved with drugs in any serious sense, and have not been, and despite occasional excessive consumption of alcohol and "social use" of marijuana, you have a demonstrated propensity to work hard for your living and to support yourself as decent member of society.

130. I take into account everything which has been said on your behalf, and give to it all the weight that I consider it is capable of bearing in your favour. I also have regard to what I consider to be your significant prospects of complete rehabilitation. It remains, however, that you are guilty of the manslaughter of an infant by criminal negligence and that warrants a serious penalty.

133. In addition there is to be taken into account against you the concerns as to your consumption of alcohol and the use of marijuana to which I have already referred, and the fact that you struck Sandra Guiver and the fact that you have twice before been convicted of offences involving violence: once at the Ringwood Magistrates Court on 23 December 2000 when you were convicted of causing injury intentionally during an altercation with a co-worker on site, and you were sentenced to three months imprisonment which was wholly suspended for 18 months; and once at the Magistrates' Court at Ringwood on 17 October 1997, when you were convicted of causing injury intentionally or recklessly and unlawful assault, during an incident in a McDonald's restaurant in which you struck a woman, and you were sentenced to be imprisoned for a total of six months imprisonment. Significantly, such detail as is available suggests that you were under the influence of alcohol at the time. You were also convicted by the Magistrates' Court at Ferntree Gully on 13 November 1991 of being unlawfully on premises, causing damage wilfully, theft and consuming alcohol as a minor, and were sentenced to be released on probation for a period of 52 weeks on all charges.

136. I have also read the victim impact statements of Sandra Guiver, George Guiver and May Ack-Hing, and each of them attests to a profound sense of loss and continuing grief over Jonathan's death as well to some extent to associated psychological maladies.

139. Balancing as best I am able the principles of sentencing laid down in the Sentencing Act, including punishment, denunciation, personal and general deterrence and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of six years. I fix a period of four years as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already served under the sentence is 552 days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.

I certify that this and the 11 preceding pages are a true copy of the Sentence of Nettle J of the Supreme Court of Victoria delivered on 16 December 2002.

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[1] R v Storey [1998] 1 VR 359 at 369; Cheung v The Queen [2001] HCA 67 at [14]

[2] cf. Edwards v The Queen (1993) 178 CKR 193 at211; R v Franklin [2001] VSCA 79; [2001] 3 VR 9 at 32 and 47-54

[3] cf Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 289; The Queen v Benz [1989] HCA 64; (1989) 168 CLR 110 at 144

[5] see R v RND [2002] VSCA 192 at [17] to[19]