R v Sutton

Supreme Court of NSW|2010-08-24|Before: Adams J

Introduction 1 Jay Sutton was indicted on 4 June 2010 upon the charge of murder allegedly committed on 18 April 2009 at Narromine. On that date he pleaded guilty to manslaughter, which plea was accepted by the prosecutor in full discharge of the indictment. As will be apparent from the undisputed facts as I relate them below, there was not and could not have been an adequate basis for a charge of murder. The offender should never have been indicted for that offence since, prejudice aside, there was no reasonable basis upon the evidence available to the prosecution for concluding there was a reasonable prospect that a jury would be likely to convict him of murder, let alone that he was in fact guilty of that offence. 2 In my younger days at the Bar it was commonly known that indictments for murder were sometimes presented in the hope that, out of fear that a misguided jury might, for whatever reason, convict of such an offence, the accused could be induced to plead guilty to the charge of manslaughter in satisfaction of the indictment. Of course, such a practice was never acknowledged, but it was nonetheless real for all that. I would be very sorry indeed if this abuse of prosecutorial power was again beginning to manifest itself.

The objective circumstances 3 What follows is almost entirely taken from the agreed facts together with inferences I have drawn from them. There was no significant dispute. 4 The offender, at the time of the offence, was 19 years old, having been born on 11 October 1988. The deceased was a female infant who was born on 27 September 2008 and was thus almost seven months old at the time of her death. At that time the offender was in a de facto relationship with the child's mother. (I have not mentioned her name in order to preserve her privacy.) It is evident that the offender believed the child to be his and I think it right to proceed upon this basis. 5 On the morning of Tuesday, 14 April 2009, the offender was seen leaving his home carrying his daughter in his arms and taking her next door, seeking help. However, the only occupant of those premises was a child and he then walked across the street. He carried the child in a way that left her head unsupported and moving as he walked along, a significant indication of his lack of understanding of the need for physical support. A community nurse came up to the offender and, seeing that the child was limp, attempted unsuccessfully to rouse her. He directed the offender to a vehicle and drove him and the child to the Narromine District Hospital about 400 metres away. The child was taken directly into the Accident and Emergency Department where staff commenced emergency treatment. Observations were made of unequal pupil dilation and fluctuations of her body between extreme rigidity and arching of the back to complete flaccidity, which indicated an injury to the head and cerebral irritation. 6 The offender told medical staff that the child had fallen from his arms onto a rug on the bottom of a cot. A few minutes after admission to the hospital, the child's mother arrived at the Accident and Emergency Department and later travelled to Dubbo Base Hospital by ambulance with her daughter and an attending physician. On further assessment, the child was immediately airlifted to Sydney Children's Hospital at Randwick. At the hospital, scans demonstrated a subdural haematoma in the cranial cavity with significant swelling in the brain. There were also indications of retinal haemorrhage and retinal detachment but no external signs of injury. 7 On the evening of 14 April, the offender was interviewed as a suspect not under arrest at Dubbo Police Station. When he was advised of his legal rights, he declined a support person or a legal consultation and provided details to investigators about his interaction with the injured child earlier that day. In substance, the offender said that the child was in his sole care from about 9.30am, her mother having left the house to attend to errands. He changed the infant and commenced to give her a bottle but she refused the bottle and would not settle. He said that he was in the process of returning the infant to her cot and was supporting her on both his hands as he lowered her into it. He said that while he was doing this she wriggled, and he lost his grip. He said that the child fell from his hands about 30 cms onto a folded doona and blankets, landing on the right upper side of her head. He noticed that her left leg began to twitch immediately, her eyes were shut and she began to moan and arch her back. He said that he realised that there was something wrong with her and tried to get help from neighbours who took him to the Hospital. 8 Two days later, the child's condition had not improved and the swelling of her brain had not subsided. There was no pupil response. A magnetic resonance imaging scan could not be conducted because of her unstable condition. On the following day, the child suffered a cardiac arrest. Although she was resuscitated she suffered a dramatic loss of blood pressure and associated circulatory problems. Tragically, she died on the morning of the following day, 18 April 2009. 9 On 19 April 2009 a post mortem examination demonstrated that the essential cause of death was a subdural haemorrhage from a head injury. There were no other significant internal or (I take it) external injuries. 10 On 21 April 2009 the offender voluntarily participated in a video walk through at his home at Narromine and conducted a reconstruction of what he said had occurred. This was, in substance, in line with what he had previously told to police. 11 On 27 April 2009 Dr Moran of the Prince of Wales Hospital Child Mistreatment Unit was given the evidence which had been collected by police, including that which had been communicated to them by the offender. Dr Moran expressed the opinion that the child had suffered abusive head trauma which could not have occurred consistently with the version provided by the offender. The mechanism of the injury was severe rotation and acceleration-deceleration. He believed that the fitting and unconsciousness would have occurred instantly upon infliction of the injury. As is obvious from the evidence of Dr Moran, the injuries suffered by the child which caused her death were not caused by an accidental dropping of her from a height of about 30 cms onto soft bedding as had been claimed by the offender. 12 Two days later, on 29 April 2009, the offender was charged with murder by police at Dubbo Police Station. In accordance with appropriate procedures, the offender was afforded the opportunity to speak with a solicitor, who attended the police station and advised him not to participate in an interview, as of course was his right.

The basis of the plea 13 The prosecutor and counsel for the defence indicated that the plea of guilty to manslaughter was made and accepted upon the basis that the offender was guilty of an unlawful and dangerous act that caused the death of the child. This was particularised as handling the child in a manner which involved either a significant angular acceleration-deceleration injury and/or the infliction of a blunt force impact injury. In either case, a reasonable person would have known that such an action carried an appreciable risk of serious harm. The offender's plea of guilty necessarily also infers an admission that the act which caused the fatal injury was intentional and not accidental although, of course, it is not suggested that the offender himself actually intended or foresaw that serious injury might result from that act.

Subjective Features 14 The offender was examined by Ms Anna Robilliard, who is an experienced forensic psychologist. She undertook lengthy consultations with the offender on 27 October 2009 and 10 August 2010 and administered conventional psychometric tests. She considered the offender to have been communicative and cooperative, though at times close to tears. 15 The offender told Ms Robilliard that he is the eldest in a family of two girls and two boys, his siblings being aged 18, 17 and 10. He also has a 25 year old half sister on his father's side. His parents are both of Aboriginal background. The offender and his family spent the first 14 years of his life in Bourke. His mother's extended family are in the Newcastle area and his father's relatives are around Bourke. At the age of 14 years he said his mother "just up and left", which left his father "shattered". Although his father did his best to look after the family, after about a year he and his younger siblings were all sent to live with their grandmother. He found her "too strict" and when he was about 15 he moved out to live with a friend aged in his early 30s, who was fully employed and the offender thought was a stable person. About two years later he went to live with his father but his father's lifestyle had changed and, from the offender's point of view, "he wasn't Dad no more", wanting to go out all the time and having become a social drinker. The offender then returned to live with his friend in Bourke. He later lived with his older half sister in Dubbo for a period and since then has lived with each of his parents for brief periods. Both parents, it seems, were in new and stable relationships and, since he has been in gaol, he has been in telephone contact with them and his grandmother and siblings and cousins. 16 As to his education, the offender went to Bourke primary and high schools but left before he complete Year 9, although he did reasonably well at school and kept up academically. He said he stopped going to school after his parents separated in order to get work to support himself. He said he had been essentially self supporting since the age of 14. The offender hopes to undertake educational and self development courses in custody once he has been sentenced, together with drug and alcohol education. 17 Although the offender obtained work when he left school in a supermarket in Bourke and seasonal cotton chipping and pressing, after he left Bourke to try to get away from what he described as negative influences - he was smoking cannabis heavily - he obtained no real employment and for the three years prior to his arrest had essentially survived on the dole although he claimed that he continued to look for work. When he was 17, before he left Bourke, he got a traineeship as a diesel mechanic but, of course, lost this employment when he left the town. He said that the work very much appealed to him and he regretted not continuing. Use of marijuana has been a continuing problem (but there is no suggestion it played a part in the offence). 18 The offender said that he and his partner commenced their relationship only two to three months prior to the child's death. The offender told Ms Robilliard that he believed that the baby was his child and, indeed, that his family was of the same belief. He said that he wanted to make a family with his partner and the child whom he loved. However, since the child's death, he has had no contact with his partner and expected that this would not change. 19 On psychometric assessment, the offender's scores were consistently in the low average range, commensurate with a percentile rank of 13 to 14 which meant that he would score equal to or ahead of 13 or 14 per cent of his age cohort on these tests. There was no reason to think that he suffers from any severe personality pathology although there were indications of depression, explicable by his situation. There was nothing to indicate aggressive or antisocial patterns of behaviour. 20 Perhaps the most significant (and unfortunate) aspect of the report of Ms Robilliard is that the offender continued to maintain his earlier account of the way in which the child was injured, although it is clear that she could not have been injured in the way he described. He told Ms Robilliard that pleading guilty to manslaughter was difficult for him because he does not fully understand what happened but felt he must plead guilty "because it was my hands that caused it … I would love to go back and change it". It is clear that the offender has not been able to satisfactorily resolve his grief, not only over his daughter's death but also his responsibility for it. He told Ms Robilliard that he tries not to become tearful in front of other inmates but often cried quietly at night. Ms Robilliard was in no doubt that monitoring of the offender's mental health and adequate support will be required not only when he is sentenced, but also upon his release. 21 The offender's paternal aunt gave evidence on his behalf. She and her husband live on a cotton farm about 50km out of Bourke, managed by her husband while she works in an auto repair business in the town. She has known the offender since he was born and has had considerable contact with him for most of his life. She verified the family history that had been given by the offender to Ms Robilliard, and added some further information. She said that after his parents had separated and the children were being looked after by his father, the offender, as the eldest, undertook responsibility for their care at a level significantly above that of ordinary 14 year old boys. She described him as a soft and quiet person, not given to violence or anger. She was present at the hospital when the child was being cared for and saw the offender at the time. He was very upset about what had happened. She said that he has talked about his feelings and expressed very great sorrow, describing him as "devastated". She appreciated that the offender would be in gaol for some further time but she and her husband had given a lot of thought as to what they might do for him when he is released. They propose that he would work on the cotton farm where there are living quarters he can use and that this plan had been discussed with the offender who said that he wanted to do this to start a new life. 22 The offender wrote a letter addressed to the Court which was tendered on his behalf expressing his deep sadness and regret for the terrible injuries to his daughter from which she died. He said that he would never intentionally hurt anyone, especially this child, and expressed his great sorrow and sadness for what he did and the consequences that followed. He acknowledges the pain through which the child's mother and her family as well as his family have suffered, feelings that he has every day. 23 Other testimonials were tendered on the offender's behalf, one from the principal of the school at which the offender was a pupil. He knew the family well and speaks highly of the offender as fully participating in the life of the school and having an entirely positive relationship with his classmates, other children at the school and his family. When he heard that the offender had been charged with murder he reacted with disbelief. The offender's grandmother also wrote of the offender in terms of high commendation vouching especially for his quietness and kind heartedness and his lack of aggression. Amongst other things, she noted that the offender is devastated by what has happened and emotionally torn, dwelling on the events of the day in question day by day and suffering great anguish. 24 In respect of prior offences, the offender has been dealt with in the Local Court for larceny, damaging property, resisting an officer in the execution of the officer's duty and a number of traffic offences. I do not regard these matters as being presently significant.

Discussion 25 A difficulty presented by the tendering of Ms Robilliard's report is that it contains (by reference) an account which is inconsistent with the plea. However, Mr Boulten SC for the offender has submitted in effect that, to the extent that this account is contradicted by the admissions implicit in the plea, he does not rely on that part of the report. This is not a case of "guilty but…" It follows that by his plea the offender admits an unlawful act, in the circumstances, necessarily an assault. The evidence is inconsistent with the infliction of any blow either direct or indirect and I am satisfied that this did not occur. There is no evidence that the offender had ever acted violently towards the child and I am satisfied that he was, as best he was able, a loving and caring father. By his plea, the offender has admitted that the act which caused the injuries was intentional and that a reasonable person would have realised that there was an appreciable risk of serious harm. I am not, however, prepared to go so far as to infer that he in fact appreciated that what he did would be harmful. I am satisfied that the applicant did not intend to injure the child, although of course it must be accepted that a degree of violence was involved. 26 In the absence of any medical evidence, I must act on the basis of my own commonsense and experience. It seems likely to me that, although the medical evidence does not itself go so far, the injury, being a classic contrecoup (acceleration/deceleration), was caused by a violent shake. The evidence does not permit me to infer to the necessary degree what the circumstances actually were but it seems reasonable to conclude that it was, at least, an act of frustration. Such feelings are commonplace to parents of children at times and can result in inappropriate conduct although mostly, thankfully, without injury, let alone serious injury. This is very far from being a case of repetitious abuse or violence. 27 Regrettably, many people, especially those who are inexperienced in the care of children, do not appreciate how dangerous a violent shaking may be. (How many of us have played the game of throwing our children in the air and catching them to their great joy and excitement, not appreciating how dangerous such play can be?) That the offender carried the child with her head unsupported as he sought help is to my mind cogent evidence of his ignorance. 28 I have considered what inferences can properly be drawn from the fact that the offender has maintained an account of what occurred which, of course, simply could not be the case. The prosecutor has not urged any adverse inference upon me. If I may say so, this reticence is quite appropriate. It can fairly be inferred that he does not or cannot acknowledge exactly what happened because the truth would disclose a failure to act with proper care for his daughter's welfare, with horrendous consequences. But neither logic nor commonsense allows a more adverse finding. It is necessary to recognize there are some things which it is impossible for some people to accept, at least for a time, and the fact that the offender is unable to face and deal with the truth of what happened seems to me to be most likely explicable on the basis that he feels unable to disclose matters which are too painful to acknowledge. There are times when denial is cogent evidence of feelings of guilt and, indeed, shame and deep regret, rather than merely attempts to deny responsibility in order to escape punishment. Having regard both to the objective circumstances, the evidence of this young man's character, and the evidence of his aunt and grandmother as to his continuing grief, I am convinced that this is one of those unusual cases. 29 In the result, I do not accept that the offender's act involved deliberate infliction of harm, let alone cruelty. By his plea, of course, he admits that he acted with hostile intent. In light of the absence of any other signs of injury (past or present) and accepting that the offender genuinely loved and cared for the child he believed to be his daughter and the evidence of the lack of any violent disposition, I consider it to be appropriate to act on the basis that this act of violence was an isolated aberration inconsistent with the offender's character, in all likelihood a single unpremeditated act of momentary frustration and lack of control in ignorance of the potential for significant injury. I note that the prosecutor did not contend for a different conclusion. 30 I regard the plea of guilty as being an acknowledgment of responsibility for the offence of manslaughter, namely that his intentional actions caused the death of the child and a reasonable person would have known that they carried a likelihood of appreciable harm. I do not regard the offender's maintaining of an untrue account of what happened as to the cause of the injuries as being a denial of his responsibility for what happened. I am satisfied that the applicant is indeed intensely remorseful for his killing of his daughter. 31 In my view, the offender has very good prospects of rehabilitation and no real issue of personal deterrence requires to be addressed in his case. 32 The prosecution accepts that, in the circumstances here, the offender pleaded guilty at the first practicable opportunity. As I have already mentioned, he should never at all events have been charged with murder. The prosecutor conceded that the offender was entitled to a discount of up to 20 per cent, as I understand it not conceding the propriety of a 25 per cent discount because he did not plead guilty at the committal proceeding. However, he could not plead guilty to manslaughter at a committal proceeding in which he was charged with murder and it would be pointless to offer to do so. The situation might have been very different had he been charged, as was appropriate, with the offence of manslaughter. In these circumstances I consider that the full discount of 25 per cent should be allowed. The prosecutor has informed me that it was never necessary to ready the case for trial since it was evident from an early stage, once discussions occurred between the defence and the Office of the Director of Public Prosecutions, that there would be a plea of guilty to a charge of manslaughter. I note also that, although the offender did not tell the truth about what he had done, he always accepted that the injuries were inflicted whilst the child was in his care and there was no question, therefore, of needing to widen any investigation, the sole forensic question having essentially been solved when the autopsy was conducted. 33 It is necessary also to bear in mind that the offender, though not a youth, is certainly not a mature man although I have already, as it were, borne this in mind in assessing his subjective responsibility for what occurred, attributing it to his inexperience in the care of a child rather than to intentional wickedness or a desire to hurt or injure. Much more is now known of the somewhat more limited ability of a young man of 19 to reflect on the significance of a violent act and control violent responses to instigating circumstances than is likely to be the case with a man of 23 or 24 years of age. In reality, this simply gives a scientific basis for what commonsense and experience already suggests. This factor is material, of course, to moral culpability but it also points to the need for a sentence to reflect general deterrence. That the offender is a young man is material not only to his subjective circumstances but also to the extent of justified punishment that ought be imposed by way of retribution. 34 It being accepted on all sides that a gaol sentence is inevitable, consideration must also be given to the question of special circumstances, as appropriately affecting the length of any parole period. I have already referred to evidence, which I accept, that the offender has found it very difficult indeed to come to terms with, not only his daughter's death, but also his responsibility for it. Although I do not doubt that he will not commit a serious offence (let alone one that involves violence) again, this is in the context of his obtaining continuing family help and, I think, the professional assistance which the Probation and Parole Service can provide to him. 35 It is necessary also to consider the impact of the fact that the nature of his offence requires the offender, for his own safety, to be held on protection/limited association. At present, the offender is housed at the Metropolitan Remand and Reception Centre with restricted hours out of his cell, only having two to three hours most days out of the cell to attend any welfare or education programme needs. He has been subjected to this regime since the date of his arrest on 29 April 2009. In assessing the sentence and considering any backdating, I think it is necessary to bear in mind that he has spent some 18 months in a prison environment significantly more harsh than that to which the ordinary prison population is subject. A one-for-one allowance is therefore insufficient. 36 For the future, when he is sentenced he will be transferred to a correctional centre accommodating convicted inmates. Whilst he remains on protection it appears from information provided by the Department of Corrective Services that he will have normal access to education and programmes. 37 To take up the specific matters referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 (the Act), the offender was in a position of trust and the child was vulnerable because of her age. These features have already been mentioned by me in dealing with the objective seriousness of the crime. The offender, as it happened, was on conditional liberty at the time of the offence (discussed below) but, in light of what I accept to be the completely unpremeditated act that caused death, this is not of significance and cannot rationally be regarded as increasing his culpability. 38 I am of the view that, in light of the sentence which I propose to impose, the parole period ordinarily applicable in the absence of special circumstances by virtue of s 44 of the Act will be insufficient to provide for the measure of support necessary to ensure his continuing rehabilitation. 39 The backdating of the sentence is complicated by the fact that on 24 September 2008 the offender was sentenced to six months imprisonment on an offence of larceny, suspended on entering into a bond under s 12 of the Act which, amongst other things, required him to accept the supervision of the Probation and Parole Service and undertake drug and alcohol assessment and complete what was called a Think-and-Link Programme. Some time after he had been in custody for this offence he was called up for breach of his bond by failing to maintain regular contact with the Probation and Parole Service and attend for the Think-and-Link group programme as directed. In substance, after some delays in reporting to the Service, he was directed on 3 March 2009 to report on 6 March 2009 to commence the Programme and told the following day that he needed to do this at 10am. However, his mother telephoned shortly after 10 o'clock and advised that the offender would attend the office in about an hour. By the time he reported, the Programme session was halfway through and it was too late for him to participate. He expressed a resistance towards being directed to undertake such a programme and was advised that his non-compliance would be brought to the attention of the Court. On 26 August 2009 at Dubbo Local Court the suspension of his sentence was revoked and the offender commenced to serve the term of six months that had been earlier imposed. I have not been informed of the reasons for this decision, but I apprehend that, being in custody for the present offence, it was thought to be inappropriate to continue suspension of the sentence, since he could not undertake any supervision. I am informed that the larceny was of items found in a motor vehicle. So far as I can tell from the records tendered before me, there was no change to the nature of his incarceration whilst he served this sentence. 40 Of the period he has thus far spent in custody, therefore, six months was not due to this offence but rather to serving the sentence imposed by the Local Court. 41 An additional complicating feature is that on 10 June 2008 the offender was sentenced to a term of 18 months imprisonment upon a charge of driving while disqualified from holding a licence. The sentence was suspended on his entering into a bond under s 12 of the Act. The requirement that he be of good behaviour for 18 months was breached by the present offence. By virtue of s 98 of the Act, this Court is empowered to call on the offender to appear before it in respect of the breach and may, under subs (2), decide to take no action, vary the conditions of the bond or revoke the bond, and must take this step unless it is satisfied - (a) that the offender's failure to comply with the conditions of the bond was trivial in nature, or

(b) that there are good reasons for excusing the offender's failure to comply with the conditions of the bond. 42 I have already mentioned that the offender has served his time on remand under a regime significantly more harsh than that of ordinary prisoners for the reason alone that he has been awaiting being dealt with for this offence. I have no doubt that, had he been charged with manslaughter at an early stage, this case would have been dealt with very much earlier than has, in the result, occurred. In light of all the circumstances, including especially the delay with its consequence on the time that he has spent on remand, I consider it to be just that the sentence I intend to pass will be wholly concurrent with the sentence of six months he has already served. So far as the sentence of 18 months (suspended) for driving whilst disqualified is concerned, it is indeed difficult to see how such a sentence could be justified, even accepting, as one must, his unfortunate driving record, which includes one such earlier offence. At all events, the circumstances of his breach and the nature of the orders I propose to make comprise "good reasons for excusing the offender's failure to comply with the conditions of the bond". 43 I have had regard to the decisions of this Court dealing with sentencing of carers for the manslaughter of children under their care. As might be expected, their circumstances differ both from each other and, markedly, from the circumstances here. The Chief Justice observed in R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520 - [43] In the case of manslaughter … the acts constituting the offence and the circumstances of the offender at the time of the offence, may vary over a very wide range of objective gravity. The actual physical assault leading to death can range from comparatively minor force to a sustained beating over a prolonged period of time, incorporating elements of gratuitous cruelty. The personal culpability of the offender may vary from a carer who acts out of despair or in circumstances bordering on accident, to the vicious acts of a sadist.

[44] In this regard child killing does not differ from other cases of manslaughter. When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.

[45] The fact that child killing is not a distinct subcategory of the crime of manslaughter for purposes of sentencing is suggested by a recent study of the Judicial Commission of New South Wales …

[46] That research shows that over the period of the study, the median sentence for murder or manslaughter of a child did not diverge significantly from the median sentence for other kinds of murders and manslaughters. In the case of manslaughter, non-child killers had sentences in a range from eighteen months to twenty-two years with a median head sentence of seven years, whereas child killers were sentenced in a range of two years to sixteen years, also with a median sentence of seven years. Non-parole periods for manslaughter ranged from nine months to sixteen years in the case of non-child killers with a median of 4.5 years and, in the case of child killers, from eight months to eleven years, with a median of 4.4 years. I should note that the child killers category included both parents or carers and other offenders who were not in a close relationship with their child victims. This research also revealed a significantly lower pattern of sentencing in the case of parents or carers. This result was affected by the number of offenders in that subcategory who claimed diminished responsibility. This manifests how issues of moral culpability must, and do, temper the need for retribution … 44 Even though the actions of an offender might be unpremeditated, there remains room for the requirement of general deterrence to be reflected in a sentence for manslaughter in the circumstances such as here, since what must be brought into clear relief is the necessity to avoid violent dealing with children, given their fragility and the potential for catastrophic consequences.

Sentence 45 The offender is sentenced to an overall term of four years imprisonment comprising a minimum term of two years commencing on 29 April 2009 and a balance of term of two years. Consequently the offender will be eligible to be considered for parole on 28 April 2011.

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CASES CITED : R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520

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