R v Rudolph

Facts

1. Jasmine was born on 4 May 2020. Her mother was Tiarnie Wilkes-Partridge and she had a brother who was 2-years old. From soon after Jasmine's birth they lived in an apartment in the Newcastle CBD.
2. The offender was in a relationship with Jasmine's aunt, Skye Wilkes, and they had two children, a girl who was almost 2-years old and an 8-month-old baby. They lived in a unit at Hamilton South (the Hamilton South unit).
3. On 12 June 2020, at the age of 5½ weeks, Jasmine was noted to be a "settled bottle fed baby" who was achieving appropriate milestones of development. An aunt who looked after her for four days towards the end of June noted her to be well and usually happy. She said it took a while to settle her at night. She was otherwise a "typical" baby with no obvious health issues or problems.
4. Jasmine's mother Tiarnie described her as a "good baby" who would sleep two or three times during the day and would sleep all night. She said Jasmine would normally go to bed at around 8pm and wake at around 6am. She also said that Jasmine would cry a lot.
5. Jasmine would often be taken with her brother to the Hamilton South unit and would be left there for short periods of time in the care of the offender, their aunt Skye, or their grandmother Lesley. This occurred on Monday 3 August 2020; Tiarnie, Jasmine and her brother arrived at about 9pm. Lesley dropped in briefly shortly after this. She was later to tell police that while she was there, she saw the offender holding Jasmine above his head and rocking her. The offender disputes this. Without any further detail it is not possible to determine whether or not this occurred.
6. Jasmine was fed a bottle of milk by her mother at around midnight and then placed on her bouncer in the loungeroom where she fell asleep. Tiarnie left shortly after, saying that she was going back to her apartment to pick up some cigarettes that she had left there. She did not return until after 9 o'clock the following morning.
7. The offender's partner Skye fell asleep on the couch about five minutes later. Her son was on the lounge next to her while her daughter and Jasmine's brother were asleep on another couch. The offender stayed awake all night. He remained inside the unit apart from a period of about half-an-hour from 2.51am. (CCTV footage outside the unit enabled investigators to determine times with precision.)
8. The statement of agreed facts proceeds to describe rather tersely what the offender did to Jasmine: On 4 August 2020, the sun rose at 6.41am at Newcastle, NSW. At around that time, the Offender committed an unlawful and dangerous act that caused the death of Jasmine. It is agreed that the relevant act was the Offender's intentional shaking of Jasmine while her head was unsupported. This caused Jasmine's head to move mainly backwards and forwards. Some side-to-side movement may have also occurred.
9. Tiarnie rang and spoke with the offender at 8.49am. She asked what was going on and if everything was all right. He replied to the effect of, "yeah everything's fine". He said that Jasmine was sound asleep while the two older children had had breakfast.
10. Tiarnie arrived at the Hamilton South unit at 9.18am. Her sister Skye woke and asked, "Where's Jas"? The offender replied, "She's all good, she's asleep". The two women then engaged in various conversations and activities while the offender lay on a couch and went to sleep.
11. At some time after 10am Skye went to the spare bedroom where Jasmine was on a bouncer, wrapped in a blanket with her face and head visible. Her eyes were closed, she was cold to touch and she was not breathing.
12. Skye carried Jasmine out of the room and there followed what must have been a chaotic scene with screaming and yelling. The offender woke. He was told to perform CPR but said he did not know what to do. Skye described him as "freaking out just as much as us".
13. Tiarnie called the triple zero emergency number at 10.37am and screamed to the operator that, "my baby is 13 weeks old and she's not breathing, she's dead". Everyone left the unit. The offender was asked what had happened to Jasmine and he replied, "I'll go and get help". He approached two workers nearby and asked for a phone, saying, "The lady is yelling out that the baby is not breathing. I just woke up. I just need a phone to ring an ambulance."
14. Police arrived at about this time and went to where the women were with Jasmine. They could not locate a pulse and felt she was cold to touch. They attempted emergency resuscitation until the paramedics arrived at 10.47am and took over. They noted that Jasmine was limp and cold, her skin was mottled and she was manifesting a lack of oxygen in the blood (cyanosis). There was congealed blood in her nostrils.
15. The offender asked one of the police officers, "Will she be right" and received the reply, "I don't know mate". He asked, "What's wrong with her" but received no reply.
16. The paramedics continued with resuscitation attempts and transported Jasmine to John Hunter Hospital. CPR was continued until 11.57am when she was declared "life extinct".
17. The direct cause of death was determined to be "head and neck injury". The forensic pathologist, Dr Allan Cala said: In my opinion, non-accidental head and neck trauma is the most likely explanation for the totality of the head, neck, spinal cord, and ocular abnormalities detected. In the situation of vigorous shaking of an infant, the head and neck is subjected to violent backward-forward motion, usually as the child is grasped around the chest, with hands placed under the … (armpit). An infant's head is relatively large in comparison with the rest of the body which exacerbates injuries due to shaking.
18. Professor Johann Duflou, consultant forensic pathologist, was retained by the defence and summarised his opinion as follows: The time at which the event which resulted in death occurred is not able to be determined from the pathological findings. It is very likely that the infant would have been symptomatic from the time of the event. There is pathological evidence which indicates the infant survived a period of time, likely at least 30 minutes, but potentially extending to some hours, prior to death.
19. Dr Cala provided further opinions as follows: Moderate to severe force would have been required to cause the injuries but this was not able to be quantified in any meaningful way. The force would need to have been applied for as short as several seconds, e.g., 3-5 seconds, if the force was great enough to damage the head and neck. The act of vigorous shaking is a very energetic one and usually creates a short burst of intense energy which is unable to be continued by a perpetrator for much greater than around 10-15 seconds, or so. As to whether it would have been obvious to a person looking at the deceased that there was a risk of serious harm or death, Dr Cala said, "In a situation of vigorous shaking, the victim's head moves mainly backwards and forwards as it fulcrums on the neck with some side-to-side movement also possible". He expected that this excessive movement would be highly visible to a perpetrator. The head and limbs would likely be moving rapidly in many directions, not only "backwards-forwards" but side to side and limbs "up and down" as the torso is firmly held. He expected that any infant subjected to this type of trauma would appear highly abnormal and very unwell almost immediately after infliction. The infant would be very quiet, no longer crying, and would be expected to exhibit signs to an ordinary person of having a grave illness, with abnormal colour, pallor, limp "floppy" limbs and become progressively more unarousable ("comatose" from worsening unconsciousness). The infant would not appear active and alert after such an event but would become progressively and inexorably more unconscious from brain injury.
20. The offender was spoken to by police late in the morning of 4 August 2020 and again on 10 November 2020. On each occasion he concealed his responsibility for causing the death. He was arrested and charged on 16 December 2020. He maintained his denial of guilt. How much of what he said on each of those occasions about the surrounding circumstances was truthful is difficult to determine given these accounts were dishonestly exculpatory.
21. The foregoing was derived from a statement of agreed facts. After that document was settled, the offender was interviewed by Ms Thea Gumbert, psychologist, on 10 January 2023 for the purpose of her preparing a report to be tendered on his behalf at the sentence hearing. She included the following as his account of the offence: [2] On 3 August 2020, Mr Rudolph reports he had been using Ice and that he was "coming down" by the time that Tiarnie left the apartment around midnight. He reports that he had also been smoking cannabis., and that he felt "tired" and "drained", but "had to keep myself awake" in order to let Tiarnie back into the apartment, as he did not want to leave the door unlocked. He also reports he had been "stressing out constantly" due to various problems, including conflict with Tiarnie's partner, and worries about his children. Around 6am, Mr Rudolph reports that Jasmine woke, he gave her a bottle of formula and tried to put her back to sleep. When she would not return to sleep, he reports, "I got really frustrated, and the other kids were awake too so I was really stressing out. I don't even know why I did it, to be honest, but I shook her a little bit … I kind of just shook her out of frustration. After I did it, I felt really bad and that, and gave her a cuddle and calmed her down and put her down in the bouncer and she went back to sleep." He said that at this stage, "I thought she was just sleeping. She was still breathing and that, so I didn't think I'd done anything, really". He reports that he only realised Jasmine had been harmed several hours later, when Skye woke him to tell him that Jasmine had stopped breathing. (Emphasis added)
22. In relation to this account, the Crown submitted that the italicised portion was an understatement. Counsel for the offender submitted it should be accepted as truthful and regard should be had to the fact that the offender may not be very articulate. Given the brief duration of the shaking as described by Dr Cala that may be right.

Objective gravity of the offence

1. In a case I dealt with some years ago involving the manslaughter of a baby I observed: [3] It is well recognised that manslaughter is an offence which can be committed in a wide range of circumstances with an equally wide range of degrees of culpability. However … the starting point is a consideration of the objective seriousness of the offence. A key part of that is to acknowledge that manslaughter constitutes the unlawful taking of a human life. It is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. (See R v Blacklidge, unreported, 12 December 1995 NSWCCA; R v Dawes [2004] NSWCCA 363; and R v Forbes [2005] NSWCCA 377; 160 A Crim R 1).
2. In the present case, the fact that the victim was an extremely vulnerable 13-week-old baby who was entrusted to the care of the offender is the most significant feature. The fact that it may have occurred spontaneously out of frustration and anger does not diminish the gravity of the crime.
3. I accept a submission [4] that the expert evidence supports a finding that the shaking occurred for somewhere between several (3-5) seconds and, at most, 10-15 seconds. I note that the estimate of the shorter period was given with the proviso, "if the force was great enough to damage [the] head and neck". The force used was "moderate to severe", but not able to be meaningfully quantified. I also accept the opinion of Dr Cala that in the course of such shaking, "the victim's head moves mainly backwards and forwards as it fulcrums on the neck with some side-to-side movement also possible". He expected that this excessive movement would be highly visible to a perpetrator. The offender's version makes no mention of this.
4. Counsel for the offender submitted [5] that it was also relevant to have regard to him having been awake all night, having consumed drugs earlier in the evening, and being in a state of stress and exhaustion. I am not prepared to have regard to his drug use on the night as that would be contrary to s 21A(2)(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). I do not understand how being tired, stressed and exhausted can reduce the gravity of the crime. In short, it was contended these factors caused an impairment of the offender's judgment. However, if that was not the case, then it would be either a more serious example of the offence of manslaughter, or it could provide a basis to infer the intent accompanying the offence of murder.
5. I accept the submission [6] that there is no evidence of premeditation but this is also not a matter that mitigates the seriousness of the crime. If there was premeditation, it would at least be a more serious example of manslaughter, or perhaps constitute the crime of murder. It is hard to imagine how vigorously shaking a baby with its head unsupported could be something that could be premeditated without an intention to inflict really serious harm.
6. Counsel for the offender conceded [7] it was an aggravating factor that the offending occurred in the offender's residence which was also the temporary residence of the victim. I do not understand how doing such a thing to baby can vary in its seriousness by the location in which it occurred.
7. This is an offence of manslaughter that is not in the high or low ranges of seriousness but somewhere in between.

Victim impact statements

1. At the sentence hearing this morning there were family victim impact statements provided by Skye Wilkes, Sandy Woolf on behalf of Jasmine's brother, and Danny Cvetanoski, Jasmine's father.
2. The pain and grief that they and no doubt many others have experienced is extreme. It will not be brought to an end by the closure of the criminal process. I extend sincere sympathy to all who loved and adored Jasmine and hope that in time they will focus on happy memories of the time she was with them.

The offender's background and personal circumstances

1. The offender was born in 1996 and was aged 24 at the time of the offence. He did not give evidence in the sentence hearing. The following information about him is derived from Ms Gumbert's report.
2. He reported to Ms Gumbert a "deprived and traumatic upbringing, involving neglect, physical and emotional abuse, and exposure to alcohol and drug abuse in the home". He never met his father. His mother had several relationships and seven further children. Many of her partners were violent towards her and the children. His mother was emotionally abusive as well. He said that when she was angry "she put us down and made us feel like we were nothing". She was also sometimes physically violent, hitting and kicking him. There was inconsistent provision for his and his siblings' basic needs.
3. His mother and her partners abused drugs. His mother was dependent upon cannabis and he has since deduced that she was using other substances, including stimulants. When she was not able to access drugs, she would become agitated and violent and would "smash up the house", or "try and burn the house down".
4. Ms Gumbert referred to evidence suggesting the offender may have been sexually abused during early childhood but that is not something he told her during her clinical interview.
5. After referring to the offender's exposure to violence, drugs and other adverse issues in his formative years, Ms Gumbert said: [8] The cumulative impact of these multiple adverse events would have had a substantial impact on Mr Rudolph's development and increased his vulnerability to poor social adjustment and psychopathology in later life, including (but not limited to) mood, conduct, and substance use disorders.
6. The offender first partnered with Tammy when he was aged 16. They had four children, the first of whom was stillborn, an experience he described as traumatic and later exacerbated his problems with substance use and mental health. The other children are now aged 4, 6 and 8. He then began a relationship with Skye and had two further children. She ended the relationship upon his being remanded in custody for the present matter. Their children are currently in foster care.
7. The offender dropped out of high school halfway through Year 9. He had intermittent employment in unskilled positions and said his only regular income was the Jobseeker allowance.
8. The offender reported an instance of self-harm by cutting his wrists at the age of 13 and an attempted suicide by hanging at age 17-18 from which he survived when the branch broke. He also reported longstanding problems with anger management. He had previously been prone to getting into fights. The anger and aggression worsened in his late teens due to his grief and substance abuse. A GP diagnosed him with bipolar disorder at around this time. (Ms Gumbert queried this diagnosis.)
9. Cannabis and alcohol use as well as sniffing petrol began in his early teens. He progressed to cocaine use at age 16 and after his daughter was stillborn his alcohol use escalated. It ceased after the birth of his next child to the point that in recent years he only consumed a few drinks occasionally. His drug use, on the other hand, continued with increasing daily use of cannabis, and from the age of 18 the regular use of Ice. From this point he said he was using "anything I could get my hands on". Engagement with rehabilitation programs as required by court orders in 2018-2019 was incomplete.
10. The offender candidly told Ms Gumbert that he had continued to use Ice in custody when he is able to access it. He has applied for buprenorphine replacement as he wants to cease. She reported him saying, "I want to get off [drugs], I do, but part of me feels like it's the only thing that stops the pain".
11. Ms Gumbert expressed an opinion that the offender accepted responsibility for Jasmine's death and expressed sadness and remorse. She quoted and summarised various things he said in that respect. She said that he identified the need for treatment to address his substance abuse and anger management problems.
12. Psychometric testing indicated symptoms of depression in the "normal" range but well above clinical cut-offs for identifying problematic drug use and likely dependence.
13. Ms Gumbert's report includes a detailed review of records from the Calvary Mater Hospital, Newcastle, Rutherford Medical Centre, and the Department of Communities and Justice. They confirmed the history the offender provided in many respects.
14. The offender has a criminal record with convictions for matters that were all dealt with in the Local Court. He received a suspended sentence of imprisonment for 6 months for what he described as sending "rude" messages to his first domestic partner in 2015. He was fined for possessing a prohibited drug in 2017 and again in 2018. There are three matters of damaging property for which he received good behaviour bonds in 2016 and 2018 and an 18-month conditional release order on 29 May 2019. It was a condition of the conditional release order that he be supervised by Community Corrections and that he continue to accept treatment at a cannabis clinic for as long as considered necessary.
15. The offender's custodial history indicates that he has had sanctions imposed on three occasions for disciplinary infractions: refuse/fail drug sample (February 2021), possess/consume alcohol (September 2022) and assault (December 2022).
16. Ms Gumbert discussed possible depressive disorders with which the offender may be diagnosed, although her psychometric testing indicated symptoms in the "normal range". This might be best understood as the disorders arising from the history the offender provided as it appears clear and is supported by the documentary material that he has experienced significant levels of depression and anxiety in the past. The psychometric testing seems to be more reflective of the time at which testing occurred (10 January 2023), as the test apparently requires the individual to rate the severity of depression in relation to nine items during the last 7 days. [9]
17. Ms Gumbert also advanced a provisional diagnosis of Intermittent Explosive Disorder, a condition defined by recurrent behavioural outbursts representing a failure to control aggressive impulses which are out of proportion to provocation and not premeditated in nature. She said these difficulties usually emerge in late childhood or adolescence and the literature notes it "appears to follow a chronic and persistent course for many years". [10]
18. It is unsurprising that Ms Gumbert also suggests diagnoses of Cannabis Use Disorder (moderate to severe) and Stimulant Use Disorder (amphetamine-type, severe). The former is in remission in a controlled environment (a euphemism for being in gaol) but the latter is ongoing. [11]
19. Responding to a specific question posed by the offender's lawyers, Ms Gumbert wrote that the diagnoses of substance use disorders and intermittent explosive disorder would have contributed towards the offence. [12] The difficulty with taking this into account is that she then supports her opinion in part by reference to the offender's intoxication with methylamphetamine and cannabis in the hours prior to the offence. Care is necessary here in not infringing the prohibition in s 21A(5AA) on taking into account self-induced intoxication as a mitigating factor.

More onerous custodial conditions

1. An affidavit affirmed by the offender's solicitor provided a history of the offender's placement in various correctional centres during his period of remand. He was initially on "suicide watch" but soon placed in "non-association" segregation protection. This appears to have been because of the nature of his charges which up until October 2022 were murder and sexual intercourse with a child under the age of 10. Inmates in other yards shouted and threw rocks and bottles of urine at him. It was in October that the Crown discontinued the sexual intercourse charge and the offender entered the plea of guilty to manslaughter which the Crown accepted in full discharge of the indictment alleging murder. This coincided with the offender being moved to a less restrictive environment where he is housed in a cell with another inmate, whereas previously he was confined to his own cell. He was then able to mix with other inmates, albeit those who are also on protection, and he has had the opportunity to do courses.
2. The fact that the applicant has experienced confinement in more onerous conditions than the general population of gaol inmates is a matter that should be taken into account in his favour. There is also the fact that he has endured the additional restrictions experienced by all inmates during the COVID-19 era.
3. I am not persuaded by a submission [13] that his time in custody in the future will be more onerous. He has now achieved a less restrictive regime and there is no evidence of him being denied anything that is available to the majority of inmates. Despite a submission to the effect, there is no actual evidence as to how because of his mental state his time in custody will be more adverse. Sometimes it can have that effect but the relevant principle does not require this to be assumed as an automatic consequence in the absence of evidence. [14]

Upbringing of dysfunction and deprivation

1. I accept the offender's upbringing was one of profound dysfunction and deprivation. His account of it is confirmed by the documentary evidence reviewed by Ms Gumbert. One of the various detrimental outcomes of this is that his life has been wracked by drug addiction stemming from his abuse of drugs (and alcohol) from an age at which he lacked the ability to exercise appropriate judgment or choice about such things. [15]
2. The offender's moral culpability for his offence is reduced on account of this background as well as on account of the mental conditions discussed in Ms Gumbert's report. That will have a bearing upon sentence generally but particularly upon the consideration of general and personal deterrence and community protection. This reduced moral culpability assists the offender's case on sentence but the degree to which it does is limited to some extent by his admission that he has had a longstanding problem with anger management and the description by Ms Gumbert of his Intermittent Explosive Disorder and Stimulant Use Disorder which warrant a little more weight being given to the protection of the community.

Other sentence considerations

1. It is conceded to be an aggravating factor that the offender was subject to the conditional liberty of the conditional release order at the time of the offence. [16]
2. It is also conceded that the impact of Jasmine's death on her family and the community, including as outlined in the victim impact statements, should be taken into account. [17] The Court is authorised to do this by s 30E(3) of the Crimes (Sentencing Procedure) Act and will do so.
3. The Crown also contended [18] that it was an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act that the offender has a record of previous convictions. I do not accept that it is a record that operates in aggravation, although it does deny the offender the benefit of a claim under s 21A(3)(e) of having no significant record of previous convictions.
4. Four matters were said to support the offender's claim of being remorseful. First was his plea of guilty. Secondly, the plausibility of him being remorseful as a father of five children and having a previous experience of struggling to care for four children on the night of 31 July 2020. Thirdly, his expressions of remorse to Ms Gumbert were in the context of him providing an account of other matters that was confirmed by documentary evidence. Finally, the offender demonstrated insight and Ms Gumbert was of the opinion he was remorseful. It is possible the offender is remorseful as he claims in his letter but, as the Crown correctly pointed out, the offender bears the onus of establishing remorse on the balance of probabilities. I am left unable to come to a conclusion one way or the other.
5. The submission as to the offender's rehabilitation prospects falls short of contending that they are "good". It is only submitted [19] that he has "imperfect, but genuine and reasonable prospects". It is of note that at one point in her report Ms Gumbert said that because of the complexity of his presentation it is not possible to provide a clear prognosis for him at this time, particularly while he remains in custody and has not begun to engage with treatment interventions. Later in her report she opines that he shows "good rehabilitative potential given his insight into personal risk factors, his motivation to address them, and his remorse for the index offence". A countervailing factor is that the offender has been steered towards rehabilitation in the past and has not fully availed himself of the opportunity. I conclude that a finding that he has the potential for rehabilitation is as best as can be made on this material.
6. The parties agree that the sentencing legislation requires there should be a reduction of sentence of 10% for the offender's plea of guilty. [20] (There will be some rounding for practical purposes.)
7. The offender has been held in custody since his arrest and so his sentence must be backdated to 16 December 2020.
8. It was submitted [21] that there should be a finding of special circumstances for a number of reasons. I have considered that submission but have concluded that the potential period of parole will be significant in terms of assisting the offender in re-establishing his life and supports upon release to the community and in pursuing (hopefully continued) treatment for his drug addiction and history of trauma and abuse. I am also mindful of the need for the non-parole period of the sentence to be reasonably proportionate to the gravity of the crime.
9. Finally, s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) requires that the offender be advised of the existence of that Act and its potential application to him. I ask his solicitor to do so.

Sentence

1. Convicted.
2. Sentenced to imprisonment with a non-parole period of 6 years and a balance of term of the sentence of 2 years.
3. The sentence is to date from 16 December 2020. The offender will become eligible for release on parole upon the expiry of the non-parole period on 15 December 2026.
4. That is a total sentence of 8 years. Without the plea of guilty it would have been a sentence of 9 years.

Endnotes

1. See, for example, R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at [193]; [226]-[227]; R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184 at [36]-[47].
2. Pursuant to ss 15A(1)(c) and15E(1) of the Children (Criminal Proceedings) Act 1987 (NSW).
3. I have inserted the actual names of people she identified only by initials.
4. R v Shepherd [2010] NSWSC 154 at [41].
5. Accused's written submissions (AWS) at para 7.
6. AWS 5(a)-(c).
7. AWS 5(d).
8. AWS 6.
9. Report of Ms Thea Gumbert, 24 February 2023, p12.9.
10. Ms Gumbert's report, p9.3, p13.8.
11. Ms Gumbert's report, pp13-14.
12. Ms Gumbert's report, p14.2.
13. Ms Gumbert's report, p14.8.
14. AWS 17.
15. Aslan v R [2014] NSWCCA 114 at [33]-[34] (Simpson J).
16. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at 273(iii) (Wood CJ at CL).
17. AWS 9.
18. AWS 10.
19. Crown written submissions (CWS) at 11.
20. AWS 24.
21. CWS 13; AWS 13.

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