R v Shepherd

Supreme Court of NSW|2009-11-09|Before: Hulme J

HEARING DATE(S) : 9 November 2009, 26 February 2010

DECISION : Sentenced to imprisonment for 7 years with a non-parole period of 4 years 6 months.

CATCHWORDS : CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - killing by father of 4 1/2 month old baby by throwing onto a bed - lower range of seriousness - plea of guilty

LEGISLATION CITED : Children's (Criminal Proceedings) Act 1987

Leach v The Queen [2008] NSWCCA 73 R v Backlidge, unreported, 12 December 1995 NSWCCA R v Dawes [2004] NSWCCA 363 CASES CITED : R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 R v Vaughan 1991 56 A Crim R R v Woodland [2001] NSWSC 416

PARTIES : Regina Clifford George Shepherd

COUNSEL : Mr R Hoenig (Regina) Mr A Haesler SC (Offender)

SOLICITORS : Solicitor for Public Prosecutions Legal Aid NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: Jeremy was born at Campbelltown on 22 May 2006. He died at the age of 4 ½ months on 3 October 2006. The cause of death was blunt force head injury. Clifford George Shepherd is Jeremy's father. He was charged with murder. On 9 November 2009, the day of his trial, he pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

2 The maximum penalty for manslaughter is imprisonment for 25 years.

3 When I heard and received evidence and submissions on sentence on 26 February 2010 I made an order pursuant to s 15E(5) Children's (Criminal Proceedings) Act 1987 consenting to the identification of the deceased child by his first name. Jeremy took his mother's rather than his father's surname. There are two older siblings. I was not prepared to consent to the child's surname being published because I am unaware of what impact, if any, that may have upon those siblings.

4 The offender and Jeremy's mother, Kylie, had known each other for about five years and commenced a relationship at around the time she became pregnant with Jeremy. She already had two children, AJ and JJ. After Jeremy's birth on 22 May 2006 they all lived together as a family until Kylie died on 7 September 2006. It would appear she died of an asthma attack complicated by excessive illicit drug use.

5 Following Kylie's death, Jeremy was placed into the care of the offender, whilst the two older children were placed into the care of relatives of their mother.

6 The offender did not want to return to live in the house where the family had lived after Kylie died so he and Jeremy moved around staying at the homes of various friends. They had lived in the home at Minto in which Jeremy died for about a week. The two slept in the same bedroom. A cot was available but it had a part missing and so the offender took Jeremy into bed to sleep with him.

7 On 27 September 2006 the Department of Community Services received a report regarding the offender's handling of Jeremy. It was claimed that when patting the child on the back to bring up wind the offender was hitting Jeremy too hard. The offender was required to attend a meeting and to present Jeremy for preliminary examination. After that examination, departmental staff indicated that the offender could continue to have the care of the child on certain conditions. In conformity with one of those conditions, the offender took the child to a local doctor who examined Jeremy, administered certain immunisations and provided a referral to a paediatrician in relation to wheezing by the child. It would appear that Jeremy had experienced some difficulties with breathing on occasions.

8 Ambulance officers were despatched to the Minto home shortly after 6am on 3 October 2006 following a tripe 0 emergency call. Ambulance staff were despatched to the address at Minto at which the offender and Jeremy had been staying. They found one of the residents administering CPR to Jeremy. It was reported that he had not been breathing for some time. He was taken to Campbelltown Hospital where he was placed on life support but later died.

9 An autopsy was conducted at the Westmead morgue on 5 October 2006. Police were called in and an investigation commenced. They interviewed the offender later that day.

10 The offender told police that at about 1am on the night of 2/3 October 2006 he was woken by Jeremy who he observed had become stiff and had ceased breathing. He said that he rolled Jeremy onto his side and patted him on the back. He continued doing that for about five minutes after which time Jeremy appeared to relax and resume normal breathing. He said the child then began screaming and so he fed him a bottle of milk, after which the boy returned to sleep.

11 The offender said that about 6am the child again suddenly went stiff and held his breath. He said the child's eyes were rolling back in his head and those symptoms did not abate. He raised the alarm with other members of the household who attempted CPR while they awaited for the arrival of an ambulance.

12 The offender said that there had been three occasions in the past when Jeremy had held his breath and had his arms and legs outstretched and stiff. He also told police that on an occasion between 7 and 21 September 2006 Jeremy had hit his head on the wooden frame of a lounge upon which the offender had placed him whilst changing a nappy. He said that while the child had cried for a period of time he had thereafter appeared normal and so the offender did not think it was necessary to seek medical attention.

13 The offender also stated in the interview that following the death of Kylie, he had relied heavily upon Jeremy as his only remaining family and would not allow him out of his sight. He said that the Department of Community Services wanted to take Jeremy from him but that he had pleaded with them to retain custody.

14 The offender had not sought any medical attention in relation to the "fits" that he claimed that Jeremy had experienced. He told the police, "it went on for five minutes and (then) it was alright … for the rest of the night". He said, however, that he had planned to take Jeremy to a paediatrician on the day that he had died, this being pursuant to a referral by the general practitioner that he had recently seen.

15 The offender provided no explanation for Jeremy's death, other than that it might have had something to do with the immunisations that had recently been administered.

16 It was not until August 2007 that police received the final autopsy report in relation to the death. That report disclosed that the cause of death was blunt force head injury occasioned to the child in the hours leading up to his death. Evidence of that injury included bleeding to each of the layers of the child's eyes. Forensic pathologists located significant brain injuries. Some of those injuries were occasioned to Jeremy within hours of his death and others within days of his death. Others occurred sometime within weeks or perhaps months of his death and it is common ground that these could not be attributed to the offender. It was also found that Jeremy had bruising to the stomach and two fractured ribs, some of which showed more advanced healing, not in keeping with recent injury.

17 The offender was arrested on 15 August 2007. In a subsequent interview investigators attempted to explain to him the nature of the injuries identified in the autopsy report. The offender offered no explanation as to how Jeremy received the injuries but confirmed that he had sole custody of Jeremy during the period over which the more recent injuries had been inflicted. The offender was then charged and has remained in custody since.

18 The statement of agreed facts that is before me does not explain what caused the blunt force head injury that was the cause of death. However, in a statement by the offender that was tendered at the sentence hearing an explanation is given that is accepted by the Crown. In that statement the offender stated that at the time Jeremy died he thought it might have been as a result of the immunisations but that he now acknowledges that this is not the case.

19 The offender stated that he loved Jeremy and was doing his best to look after him properly. He had reduced his usage of marijuana and only smoked it after Jeremy had fallen asleep at night. He said that sometimes he became frustrated when Jeremy was crying and would walk away from him. On occasions he asked other people to look after Jeremy so that he could have a break.

20 He said that he had no experience looking after babies. He recognised now that he did not know how to properly look after Jeremy but claimed that he was trying to do the right thing. People had told him that he was hitting the child's nappy too hard when he was burping him and so he took remedial action in relation to that.

21 The offender said that on the weekend before Jeremy died he had some seizures and went stiff, but because he came good again and went back to his old self after a little while he did not think it was serious. He intended to tell the paediatrician about these when he saw him.

22 The offender's statement includes that he had been told that Jeremy died from recent blunt force head injury and that this injury happened "in the days before he died". I note that the agreed facts which were signed by the offender state that the blunt force head injury was inflicted "in the hours leading up to death". Be that as it may, the offender goes on to state: I remember that just before he died, on one of the nights while we stayed with (friends), Jeremy woke up and began crying. I picked him up, but he wouldn't settle down and stop crying. I was feeling tired and frustrated and had to go downstairs to get him a bottle. Instead of putting him on the bed gently, I tossed (him) on to the bed. There was a pillow sitting at the top of the bed which was partly covering the bed head. I think he must have hit his head on the pillow or bed head, because when I came back from downstairs he was quiet and had stopped crying. I gave him the bottle and went to sleep.

23 The offender also stated that the only other time he could remember when he may have hurt Jeremy was an occasion when he was rough with him when putting him on the lounge to change his nappy when Jeremy hit his head on the lounge.

24 The statement also includes that the offender understands and accepts that what he did was wrong. He accepts that he was too rough with Jeremy when he tossed him down and that what he did was enough to cause serious injury that caused or contributed to his death. He goes on to say that he misses Jeremy terribly and that he was all that he had. He finds it hard to believe that what he did caused the death but accepts the medical evidence and blames no one but himself. He said that if he had known more or been told more or thought more about how fragile Jeremy was, this would not have happened. He accepts that Jeremy was his responsibility and that he failed him.

25 In the course of his evidence the offender acknowledged responsibility for the fractured ribs that were found on autopsy. He attributed this to squeezing Jeremy's chest with more force than was appropriate for a child of his tender age. It was implicit in his evidence that he attributed this, in turn, to his inadequate knowledge and skill concerning the care of an infant child.

26 The offender was born in January 1975 and so he was aged 31 at the time of the offence.

27 He has a criminal history which includes offences relating to drugs, stealing, assaults and driving offences. The assaults comprise two convictions for common assault in 1994, a conviction for assault occasioning actual bodily harm in 1995 (imprisonment for 12 months with non-parole period of 9 months) and assault occasioning actual bodily harm in 2005 (suspended sentence of imprisonment for three months).

28 The offender was born in Camden. He had a brother who was some 3 years older. His father left the family when he was aged two and he didn't see him again until he was aged 16. His mother remarried at some stage but the offender reported that his stepfather and stepsiblings were violent towards both himself and his brother. There were also occasions of violence towards his mother which he did not witness until the final occasion when there was a particularly heated and violent rage after which he did not see his stepfather again.

29 The family moved around a lot and he remembered once staying at a crisis centre. At the age of 13 he found his older brother hanging in a backyard shed. He tried unsuccessfully to resuscitate him. He said he never understood why his brother had killed himself and it has been a cause of enduring trauma for him.

30 He continued living with his mother, alternating between her parent's home at The Oaks and Department of Housing accommodation at Narellan. His mother experienced a stroke on two occasions. He lived with his father for about eight months after the second stroke. His mother died when he was aged 16. He returned to live with his grandparents and hasn't seen or had any contact with his father since.

31 The offender commenced a relationship with Kristy Pace in about 1995 which lasted some 18 months. They had a son who is now aged 13 and lives with his mother in Grafton. The offender has had regular contact with them since going into custody and plans on release to move close to them so that he can see more of his son.

32 Since being in custody the offender has been taking a prescribed antidepressant and has been seeing a psychologist for counselling in relation to depression. He has a "limited association" classification because of the nature of the charge that he faced. He said in his evidence that he was content with this classification and that it had not prevented him from completing some courses.

33 Dr Christopher Lennings, psychologist, has reported that the offender experienced constant flashbacks and rumination about his brother's death. It seemed to Dr Lennings that the offender has a posttraumatic stress disorder-like response. He is also of the view that the offender had developed significant psychological vulnerabilities as he emerged into his adult years as a result of all of the negative aspects of his upbringing, including insecurity, mobility, and the domestic violence at the hands of his stepfather.

34 The offender was educated to midway through Year 9. He has literacy problems to the extent that he cannot obtain a driver licence because he cannot pass the licence test. His employment history comprises various positions of unskilled labouring.

35 He commenced using both alcohol and cannabis from about the age of 14. He drank alcohol heavily but stopped around the age of 18 when he went to gaol. Since that time there has been only occasional binge drinking up until the time that his son was born. He told Dr Lennings that after Kylie died he stopped drinking completely because of his need to take care of Jeremy. He continued to use cannabis but only after Jeremy had gone to sleep.

36 The offender gave to Dr Lennings essentially the same explanation for Jeremy's death as was set out in his written statement. He described Jeremy waking up crying and he realised that he needed to give him a bottle. He was tired, sleep deprived and somewhat frustrated. He threw Jeremy on to the bed as he had done on other occasions. Dr Lennings noted that the child had a couple of seizures the morning after the incident occurred and says that the offender did not realise the gravity of the situation and respond more quickly to it. Dr Lennings states that such tardiness further reflects on the offender's poor parenting skills.

37 The offender told Dr Lennings that he was just trying to struggle through as a father. He was trying to keep Jeremy out of DOCS care as he had deep suspicion of what happens to children once they are in the child welfare system.

38 He told Dr Lennings of his feelings of depression in the context of continued rumination over his brother's death compounded by the death of his son. Dr Lennings' opinion was that the offender satisfied the criteria for Major Depression. He felt that this depression was long term and as a residual condition from what was probably a posttraumatic like disorder associated with the suicide of his brother in his early adolescence. Dr Lennings described the offender as a psychologically vulnerable man who had failed to achieve a good level of function for any consistent period in his adult years.

39 Towards the end of Dr Lennings' report there appears the following: The death of Jeremy appears to have been unintended but also reflect(ed) the absence of parenting skill. The contribution of his own childhood and life experiences towards problems in managing impulsivity and irritability seem manifest in the offence. His lack of parenting skill is a reflection of his own most difficult life, lack of appropriate parenting models and little support. His suspicion of DoCS was unfortunate in that it removed a potential support from him. Mr Shepherd does report extreme remorse for his son's death and there is no doubt that he is severely disturbed by what has occurred. Jeremy's death compounds the other deaths that have been significant in his life.

40 Included in Dr Lennings' recommendations are that the offender would benefit from programs whilst in custody such as anger management and those aimed at improving control over impulsive behaviour and developing consequential thinking. He also recommended that the offender seek psychological support to work through the many losses he has experienced through his life although the doctor acknowledged that that would be difficult in a custodial environment.

41 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, as was accepted by senior counsel for the offender, 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).

42 The courts have always regarded assaults by parents upon little children resulting in death as grave and serious cases of manslaughter: per Lee CJ at CL in R v Vaughan 1991 56 A Crim R 355 at 359.

43 I was referred to the judgment of Hidden J in Leach v The Queen [2008] NSWCCA 73. There his Honour in turn gave consideration to the judgment of Wood CJ at CL in R v Woodland [2001] NSWSC 416 and that of Spigelman CJ in R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520. I particularly note the analysis by Hidden J of the range of sentences that had been imposed in the various cases referred to in those judgments. However I also note that in Hoerler, Spigelman CJ noted that "child killing by a parent or carer does not occur so frequently to make it possible to deduce a sentencing pattern from past cases". He went on to say: [42] Plainly a violent attack, albeit not one accompanied by an intention to kill or inflict grievous bodily harm, by a person in a position of trust and responsibility upon a defenceless young child, is a circumstance of considerable aggravation. … It is a circumstance of such significance that it is entitled to substantial weight in the exercise of the sentencing discretion. The sense of outrage in the community about such a case is so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion.

44 Hoerler clearly was a case which involved "a violent attack". The same cannot be said about the circumstances of the killing in the present case. Factors relevant to the assessment of the objective gravity of the offence in the present case include: · A very young life was taken; · by his father; · who stood in a position of trust; and · in circumstances where the act was spontaneous and without any thought of the consequences

45 I am not satisfied that the offender was aware that his act was dangerous. However, by his plea, the offender acknowledges that a reasonable person would have appreciated that the act was one, which in the circumstances, exposed the child to the risk of serious injury. In all of these circumstances I would assess the objective seriousness of the offence as being in the lower range.

46 Other matters relevant to the assessment of sentence include the following.

47 The offender pleaded guilty on the day of his trial. The Crown and the Court were put on notice of the proposed plea at some stage during the previous week. I propose to reflect the utilitarian value of this plea by reducing the sentence I would otherwise have imposed by one eighth.

48 The offender's criminal history denies to him the leniency that would otherwise be extended to a person without such a history. That is the extent of its significance.

49 I am satisfied that the offender has good prospects of rehabilitation and is unlikely to re-offend. I am moved to make those findings in his favour because I am also satisfied that he is so remorseful over what he now acknowledges that he did that I believe the very strong likelihood is that he will be haunted by the thought of it for the rest of his life.

50 The offender's remorse is evident from his plea of guilty, which was entered in circumstances in which there was, I accept, an area of uncertainty in terms of the expert evidence as to the precise cause and mechanism of death. It is also evident from what the offender said in his consultation with Dr Lennings, in the written statement that was tendered to the Court, and in the oral evidence that he gave before me last Friday.

51 I am satisfied that there are special circumstances in this case warranting a longer parole period than would be the case if statutory proportions were maintained. The offender has the various psychological issues and vulnerabilities described by Dr Lennings and it would of benefit if there were to be a longer period of parole supervision to assist him to re-establish a stable and law-abiding life in the community.

52 Convicted. Sentenced to imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence is to date from 15 August 2007 and the offender will be eligible for release on parole on the expiration of the non-parole period on 14 February 2012. The total sentence will expire on 14 August 2014. **********

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