R v Smith

SENTENCE 1The offender, Robert Smith, pleaded guilty in the Local Court on 16 December 2011 to the manslaughter of his de facto partner's six year old daughter by way of gross criminal negligence and to being an accessory after the fact to her murder. Those pleas were confirmed on arraignment in this Court on 3 February 2012. 2The manslaughter was committed on 13 July 2010, while the accessorial offence was committed between 13 July 2010 and 21 April 2011. Each offence carries a maximum penalty of 25 years' imprisonment. 3The offender is to be sentenced on the basis of the following agreed facts.

The Offences 4The offender, who is now 34 years of age, commenced a relationship with Kristi Abrahams in 2006. Ms Abrahams had a daughter, the deceased, who was born on 22 April 2004 during her relationship with her former partner. That relationship ended following an assault by Ms Abrahams on the deceased on 3 July 2005. The child's father reported the assault to the police. Ms Abrahams was charged with assault occasioning actual bodily harm, was convicted of that offence on 1 May 2006 in the Local Court and released on a section 9 bond for a period of 12 months. 5The deceased was placed into foster care for a period of 18 months. Ms Abrahams was directed to enter into a parental care plan and to attend anger management and counselling programs. Ms Abrahams was allowed supervised access to the deceased. 6The deceased was restored to Ms Abrahams' custody on 23 December 2006. At that time, Ms Abrahams and the offender rented premises in Mt Druitt, being a two-bedroom unit on the first floor. The offender adopted the role of father to the deceased and thought of himself as her father. The offender and Ms Abrahams subsequently had two children together, one born on 9 February 2008 and another born 7 July 2010. The deceased occupied one bedroom of the unit while Ms Abrahams and the offender shared the second bedroom with the other two children. 7At about 9:30am on 1 August 2010, Ms Abrahams called 000 and reported the deceased missing from her bedroom and the front door of the unit open. She told police that the offender was searching for the missing child. Police undertook a large-scale search and investigation but the deceased could not be found. 8Ms Abrahams and the offender were interviewed by police on two occasions, namely in August and September 2010. They each gave false accounts of the deceased's disappearance. Both of them maintained that the offender bought dinner from Westfield shopping centre at Mt Druitt on Saturday, 31 July 2010. It was said that the family ate dinner and watched a movie, namely "The Golden Compass" on Channel 9. They maintained that they put the deceased to bed at about 9:30 pm. Ms Abrahams said that she fed the baby and took him to bed at about 11 pm. The offender joined her shortly thereafter. 9They further maintained that they woke up during the night to feed the baby. The offender said that he had prepared a bottle of milk whereas Ms Abrahams claimed that she breastfed the baby. Ms Abrahams maintained that she discovered the deceased missing from her bedroom at about 9:30 am as she was returning from the toilet. She claimed that she woke the offender to look for the deceased while she rang 000. The offender told police that he was yelling out the deceased's name throughout the neighbourhood, although none of the neighbours heard or saw anything consistent with the offender's version of events. 10CCTV footage of the neighbourhood on 1 August 2010 depicts the offender casually walking through Westfield shopping centre at Mt Druitt at about 10:40 am. Thereafter, neither the offender nor Ms Abrahams assisted police in any further searches. 11The offender claimed in the course of his interview that the deceased was a normal happy child and that Ms Abrahams' parenting was in no way inappropriate. The offender said that Ms Abrahams did no more than administer "a little smack" to the deceased if she had misbehaved. He described the relationship between Ms Abrahams and the deceased as "good" and denied that he or Ms Abrahams would do anything to harm the child. 12The investigation generated a significant amount of national media interest. Initially the offender and Ms Abrahams refused to speak with the media. However, on 3 August 2010 they made their first television appearance outside Mt Druitt police station. The offender spoke on Ms Abrahams behalf and asked for anyone who knew anything to come forward and contact the police. The offender expressed the hope that the deceased was found as soon as possible and that she was safe and well. He said that it was more difficult to cope with her disappearance the longer she was missing and that he had no idea who might have taken the child. 13The offender and Ms Abrahams took part in a number of media interviews including an article published in "Who" magazine. The offender made a number of comments in the course of that article, namely that he looked everywhere for the child, that it was difficult dealing with the media reports because "you couldn't do anything to harm your daughter in that way", that he had nothing to hide and that if he knew where the child was he would not be sitting in the interview room. 14On 6 August 2010 in an ABC media interview the offender said that the police had identified him as a key suspect. He said that "there is no way in the world" that he would cause harm to the child. The following day in a Daily Telegraph interview, the offender again denied having anything to do with the child's disappearance. 15The versions provided by the offender and Ms Abrahams relating to the disappearance of the child were repeated to a number of DOCS officers after August 2010. 16Both of the offender's and Ms Abrahams' children were removed from their care on 20 April 2011 as a result of a number of developments in the investigation of the deceased's disappearance. These developments included the detection of the presence of the deceased's blood throughout the unit and the availability of evidence from witnesses who saw bruising and injuries on the deceased while she was in the offender's and Ms Abrahams' care. 17As a result of a covert police operation that included recorded conversations between an undercover operative and the offender, telephone intercepts, surveillance and listening devices, it became apparent on 21 April 2011 that the child received an injury in the evening of 13 July 2010 that resulted in a loss of consciousness. It will be the Crown case in a forthcoming trial against Ms Abrahams that Ms Abrahams was responsible for that injury. 18The offender's account to the undercover operative was that he was changing the nappy of one of the other children in the lounge room while Ms Abrahams and the deceased were in the deceased's bedroom. He said that he heard "a loud bang" coming from the deceased's bedroom. He entered the bedroom and saw the child lying on the bedroom floor, breathing but unconscious. 19The offender said that he panicked and did not know what to do. He said that he was trying to wake the child but was unsuccessful. He said that the child was still breathing at this stage and that he tried everything for "half the night" but the child would not wake. Ms Abrahams placed the child in bed and the offender and Ms Abrahams retired for the night. 20The next morning, the offender went to work. When he came home the child was dead. Ms Abrahams was still with the child at home. Later that day, Ms Abrahams and the offender took a suitcase from the garage, placed the child's body in the suitcase and placed the suitcase in the child's bedroom. 21The body remained in the suitcase in the bedroom for a number of days while they decided how they were to dispose of the body. The offender rode his bicycle to nearby bushland to locate a suitable burial site. When he had done so, he dug a shallow grave with a hammer which he subsequently cleaned and threw away. The bicycle was also cleaned to remove any traces of the grave site. 22At about 5:30 am on Sunday, 18 July 2010, the offender called a taxi and told the operator to collect them from a false address. The offender also provided to the operator a false address as the destination. However, when the taxi arrived the offender corrected that destination and placed the suitcase containing the child's body into the boot of the taxi. Both Ms Abrahams and the offender disguised their appearance for the purposes of this journey. 23The taxi travelled to Freya Crescent, Shalvey where Ms Abrahams and the offender, who was carrying the suitcase, got out of the taxi and walked for approximately 30 minutes along a number of fire trails to the grave site that had previously been prepared by the offender. The grave site was marked with a pouch which the offender had found nearby. It is suggested that the object was placed on top of the grave by the offender in order to deflect investigators in the event that the grave site was found. 24The child's body was placed in the grave and the offender poured a bottle of petrol onto the body which he ignited. He threw the bottle into the fire and filled in the grave. The suitcase was carried a short distance away and set on fire. 25The offender and Ms Abrahams remained in the area for about an hour. They left together in a taxi at about 7 am from Sedgman Crescent Shalvey. They were driven back to the vicinity of the unit. 26The offender returned to the grave site alone a couple of days later to ensure that the suitcase was fully burnt. He threw the wire frame of the suitcase into the bush. 27The offender and Ms Abrahams threw out the shoes and clothing that they were wearing when they buried the deceased's body and destroyed their mobile telephone sim cards. However, police retrieved deleted SMS text messages from the offender's phone and from Ms Abrahams' phone. Those text messages included one between Ms Abrahams and the offender on 23 July 2010 wherein Ms Abrahams asked the offender if he still loved her. The offender replied : "U need to remember what I said." 28On 28 July 2010, Ms Abrahams purchased items purportedly intended for the deceased, including a Tinkerbell poster and some toys. 29After giving this account to the undercover operative, the offender and Ms Abrahams took the undercover operative to the deceased's grave site in the expectation that he would assist them in removing and disposing of the deceased's remains to avoid any implication in her death. Ms Abrahams and the offender were arrested at the grave site on 22 April 2011. Police found the deceased's remains in a shallow grave. The remains were taken to the Glebe morgue where a post mortem was carried out. 30The results of the post mortem confirmed that the deceased was the victim of long-term physical abuse leading up to the night of the injury. There were several sharp edged fractures to the teeth, indicative of a recent injury, possibly sustained by forcible closure of the mouth during a blow to the head or a similar trauma. Several bony injuries suggested repeated assaults over the weeks and months prior to the deceased's death. These injuries were generally only found in the remains of children who suffered from "severe physical abuse". The condition of the body precluded a finding as to the cause of death. 31A specialist odontologist reported that the fracturing of the teeth appeared to be recent and consistent with trauma during life rather than post mortem. The pattern of distribution of the fractures was said to be consistent with the lower teeth being forced up against the upper teeth. The type and degree of force required to cause such fracturing of the enamel was said to be consistent with a contact sport blow or from jumping from a height and landing heavily on the ground. There were indications from the remains that the body had been disturbed by scavengers such as a dog or fox.