R v Thompson [2004] VSC 288

5. By your plea you concede that you committed an unlawful act which was such that a reasonable person in your position would have realised, exposed Jordan to an appreciable risk of serious injury.

8. However, notwithstanding your plea, the precise circumstances under which Jordan met his death and the exact nature of the unlawful and dangerous act which caused his death are not clearly and indelibly established by the evidence before me. You have given no unequivocal explanation as to what occurred and there is some conflicting evidence as to the circumstances surrounding Jordan's death and, accordingly, it is necessary for me to refer to the background in some detail

11. The background to the events which bring you before this court are as follows. You commenced a relationship with Caitlin Hall in June 2002. She turned 18 years that month. At that time, you were somewhat younger than her, being aged 17 years, you having been born on 22 November 1984. At the commencement of your relationship, you and Caitlin lived an itinerant lifestyle, at first living together with her father, and then apparently after some dispute with him, with her mother, and for periods of time as well staying in backpacker accommodation and boarding houses.

14. On the day of your 18th birthday you and Caitlin discovered that she was pregnant. Subsequently, with the assistance of St Kilda Youth Support, accommodation was found for you both in a flat in Chapel Street, St Kilda.

17. As stated above, your child Jordan was born on 9 July 2003. At birth he was small in size but Child Health Service records demonstrate that by 13 August 2003 he was making good weight gain and was, in the opinion of the infant welfare nurse, a "healthy baby boy".

20. At around midday on Thursday 21 August 2003, Caitlin Hall attended upon St Kilda Youth Service without an appointment, in what was observed by people who I am satisfied are skilled observers, to be a visibly distressed state. She was questioned by a youth worker as to why she was upset and she said that you and she had argued over the fact that her Centrelink payments had not been changed from Youth Allowance to Parenting payments and because a general medical check up had not been arranged for Jordan.

23. Soon after the arrival of Caitlin at the St Kilda Youth Service you entered the service. You too were observed by an experienced youth worker to be distressed and displaying frustration and irritation in your voice. The experienced youth worker attempted to settle the situation by pointing out to both you and to Caitlin that the issue of the Centrelink payments and the medical examination of Jordan could be quickly resolved.

26. Whilst you were at the youth centre Caitlin asked about the whereabouts of Jordan. You told her that he was at home. Thereafter further discussions continued between you and the youth worker. She spoke to you about the possibility of you obtaining a forklift licence and this discussion appeared to her, at least, to settle you down. You then left the youth service. Caitlin stayed for a further brief amount of time speaking to the youth worker and then walked home to the flat in Chapel Street. When she arrived home she pushed a buzzer on the front gate, as she had left her keys to the flat behind at the flat when she had left earlier. You then came running down the path and you told her that Jordan was not breathing properly. When she got inside she saw Jordan lying on the floor wearing a nappy and a singlet and enclosed in your jacket. "000" was then telephoned by her forthwith and an ambulance attended at 1.07 p.m. Subsequently, another two ambulances attended, the first of them, a MICA ambulance, arriving at 1.10 p.m. The MICA paramedics attempted resuscitation of Jordan but to no avail. The senior paramedic formed the view that he had been dead for some short time, perhaps up to an hour.

29. Upon arrival of the first ambulance you were found to be nursing the child and crying uncontrollably. You said, "I think he has stopped breathing". The ambulance officers found the child to be in full cardiac arrest. You were asked by ambulance officers what had occurred. You said that you and Caitlin had had a disagreement and that she had left to go to a support network. You said that you had followed her on your push bike, spoken to her and returned. You told ambulance officers that upon being absent for approximately 15 minutes you found that Jordan had vomit around his mouth and you picked him up and found he was not breathing. You told ambulance personnel you had applied CPR.

32. A post-mortem examination of Jordan was undertaken by an experienced forensic pathologist, Dr Matthew Lynch. The principal cause of death was found by Dr Lynch to be a rupture of the liver secondary to blunt abdominal trauma. Internal examination showed evidence of recent injury in the form of fractures of the left fourth rib laterally and undisplaced fractures to the right ninth and tenth ribs posteriorly. The latter fractures were found to overlay an area of extensive internal haemorrhage involving the liver, right kidney and adrenal gland. Dr Lynch concluded that those fractures were most likely related to the same episode of trauma that had resulted in the liver rupture and the anterior abdominal bruising. He also identified old fractures to the left fifth and sixth ribs which he could not exclude as having been caused at birth. Birth records produced before me suggest the birth was normal. There is no other explanation for this injury.

35. Caitlin Hall made a statement by way of statutory declaration to police on 21 August 2003. In the course of that statement she told police that she had never seen you to be physically violent with Jordan and that you have not been violent to her.

38. You were interviewed by police on several occasions. The first such interview took place on the afternoon of the death of Jordan. You told police that that morning you had had an argument with Caitlin and that she had left to go to a youth hostel to see a youth worker. You told police that when she left, baby Jordan was still up and was upset but you put him to sleep. You told police that you left the premises and went to the place where Caitlin was, where you had a conversation with her and a youth worker before returning. You said that upon coming inside you found Jordan in his bassinet and observed that he had vomited. You said that you then picked him up and a short time later Caitlin came back and you noticed that he was not moving and his eyes had rolled back in his head. You told police that you tried mouth to mouth resuscitation and that you then tried CPR by using two fingers of your hand, and that you "then ended up using the palm" of your hand.

41. Subsequently, on 23 August 2003, you were asked further questions by the Homicide Squad. You told police in the course of that interview that sometimes you became frustrated with Jordan and that when you got really "stressed out" you held him "a bit tight" and "in a bit of a squeeze from the side". You told police that at such times you would say such things as, "Jordan, what is bloody wrong with you, I can't understand?" or "Will you fucking listen to me". During the interview you told police that you picked Jordan up in the course of the argument with Caitlin which took place before she went to the youth centre, and you said "there is a possibility" that you had squeezed him harder than normal on that occasion. No other admission of violence to Jordan was made by you to police.

44. At the committal hearing Dr Lynch was asked specifically whether a person squeezing a child could cause the liver injuries which he observed upon Jordan. He said, "I'm very comfortable with the proposition that an adult picking up a child of Jordan's size and age, squeezing him hard could produce the injuries I saw". Furthermore, at the committal, Dr Lynch said that "the damaged liver may have been the result of a single episode of blunt, possibly, compressive force".

47. You were charged with the manslaughter of Jordan on 23 August 2003.

50. Subsequently, on 22 September 2003, Caitlin Hall made a further statement, again by way of statutory declaration, to police. In this statement she withdrew the earlier statement that she had made to police that you had not been violent either to her or to baby Jordan on any occasion. In the further statement she described physical and emotional violence directed at her throughout the course of your relationship with her. She alleged that from time to time you would become stressed due to the fact that Jordan was crying and that you would yell at him. (I interpose at this stage that that is something you admitted to police.) She described in her second statement, however, a number of previous events of mistreatment of Jordan including squeezing the child.

53. It should be noted that maternal and health nurse, Sarah Pitney, saw Jordan on six occasions between 16 July 2003 and 13 August 2002. There was no suggestion of any mistreatment of Jordan based upon her observations. Indeed, she made a note on 13 August 2003 that you and Caitlin were receptive to visits from her and were caring for Jordan in a loving manner. That, of course, does not exclude the possibility that Caitlin's later allegations of mistreatment were accurate, but it does suggest that any such mistreatment did not cause physical evidence thereof.

56. In her later statement Caitlin Hall also asserted that on the day of Jordan's death, and when the ambulance arrived, you told her that you had punched Jordan on that day whilst looking after him. Ms Hall stated that she did not tell the police any of these details on the day that she made her statement because she was "doing stuff which I normally did, that was I did not want to acknowledge to anyone what had been happening to me or Jordan, I just wanted to keep it to myself". It might be observed that the experience in the courts shows that such a response is certainly not unknown amongst those who suffer abuse.

59. However, at the committal hearing, Caitlin Hall was cross-examined in some detail in relation to the allegation made by her that you had said to her that you had punched Jordan that day whilst looking after him. She withdrew the allegation that you said you had so punched him "that day whilst looking after him" and said that you said only that you had "punched him". It should be observed that after you allegedly said this to her, she was spoken to by a number of people on the day in question. First, she was asked specific questions by MICA paramedic Kelly about some bruising that he observed on Jordan. At that time she was in the ambulance with Jordan. You were not in that ambulance. In answer to those questions she said she had "no idea" about the cause.

62. Secondly, she was spoken to by a nurse at the Royal Children's Hospital. No mention was made of your alleged statement at that time to that nurse. Certainly on the first of these two occasions, Caitlin was being asked questions which related to the treatment of Jordan. The evidence before me is that Caitlin was a young mother who, notwithstanding the economic and other difficulties which faced her, nevertheless cared deeply for her child. I consider it likely that she would have told the ambulance officer that you punched Jordan if you did say that at the scene, when that matter was relevant to the question of his treatment.

65. Thirdly, Caitlin Hall was spoken to by Senior Constable MacDonald of the Child Abuse Unit at the Royal Children's Hospital on the afternoon of the death of Jordan in your absence and nothing was said about your alleged statement of punching Jordan.

68. Finally, a detailed statement of some pages was made by Caitlin by way of statutory declaration on the evening of 21 August 2002 whereby no suggestion was made of your making such a statement. Indeed, the statement made by Caitlin that night went further and contained positive assertions that Caitlin had never seen you be physically violent and that you were "involved with Jordan", that you would chat with him, sing to him and she said that was "how you had been" since she was pregnant. She told police that you would have arguments but it was "50/50" as to who the person was who was "going off". She said that you and she would often argue about her family who were "not very accepting of you". She said that even though you "argued a bit, it had never turned violent".

71. I have read the evidence given in relation to these matters at the committal hearing carefully and in all the circumstances I cannot be satisfied beyond reasonable doubt of the accuracy of matters raised for the first time, well after the death of Jordan, by the second statement.

74. Furthermore, although Dr Lynch said that a direct blow to the back of the child could have caused the liver damage, he said at p.130 of the committal transcript that "looking at the injury" did not make him think a closed fist caused it. He said he favoured fingers squeezing rather than a fist for the cause of the liver injury. Of course, it is clear that it was the liver injury that caused the death of your son Jordan. Dr Lynch said at p.131:

"An adult hand applied producing those injuries is most likely also going to be with force applied, applying force to the vicinity of the liver, because the whole area we're looking at here probably covers eight by eight centimetres, it's a very small area. I just - I absolutely agree that those two separate roundish type injuries could be produced by some form of squeezing with the hand and if sufficient force was applied and there was, as I said before, some form of support on Jordan's back there might be a way that the liver and rib injuries were sustained"

78. Obviously, punching a child of six weeks of age and engaging in a course of systemic mistreatment over a period of weeks before his death would be severe aggravating factors and would justify a very lengthy prison sentence.

81. However, before I could rely upon these matters as aggravating factors I would, as a matter of law, require to be satisfied that they have been established by the evidence beyond reasonable doubt. On the evidence before me I cannot be so satisfied.

84. Your plea of guilty to the charge of manslaughter of Jordan is on the basis that the act of squeezing him in frustration and anger shortly before or about the time Caitlin left to attend upon youth support, was an unlawful and dangerous act. That appears to me to be the only factual basis upon which I can sentence you.

87. I am satisfied that at that time you were angry with Caitlin and you took your anger out on Jordan in frustration. Furthermore, it is clear from what you told police that you from time to time were indeed unable to control your frustration when Jordan would not settle to sleep or would cry. In this regard I refer to questions 160-166 and the answers to questions asked of you by Detective Senior Sergeant Iddles on the date of the death of Jordan.

90. Thus, I am satisfied beyond reasonable doubt that your anger and frustration at this time was not an isolated event. I am satisfied that the argument you had with Caitlin was a heated one. As you were putting Jordan down, you vented your anger and frustration on him by squeezing him very hard. You then left him in his cot and followed Caitlin to the youth service. There is no evidence before me to cause me to believe that at that time you knew the grievous consequences of your actions upon Jordan. Dr Lynch's evidence was that the consequences of a ruptured liver would take some time, although brief, to develop. It is clear from the evidence that at the time of your arrival at the youth service you were still in a state of anger, irritability and frustration. I accept that at that time you had no appreciation of the consequences of your actions and it was only upon your return home that this matter dawned upon you. I accept that the distress described by Caitlin and others as being displayed by you from that point on was genuinely felt.

93. In this case a young life indeed has been lost by your actions. Notwithstanding that I accept that you had no intention to harm the child and notwithstanding the fact that the events, which I am satisfied beyond reasonable doubt caused the rupture of his liver, and consequent death, took place in a period of seconds of time, the facts in this case are serious indeed. Any intelligent human being, which you are, would understand that young babies are fragile, and that to squeeze a baby as you did, indeed as your plea recognises, is to expose such a child to an appreciable risk of serious injury.

96. The community must consider the loss of a life, and particularly the loss of the life of a young child, a baby in this case, as a matter of grave concern.

99. The death of Jordan has, as Mr McArdle, Senior Counsel, submits, caused grievous hurt to Caitlin and to her mother. Both Caitlin and her mother have filed detailed victim impact statements. The statement of Caitlin is a moving expression of the grief that the loss of her son has caused her. Not surprisingly, she states that she has suffered depression and she holds perfectly understandable fears, in my view, that she will be unable to ever trust anyone enough to father a child in the future. Jordan's grandmother, likewise, has filed a statement which describes her depression and anxiety at the loss of her grandson.

102. However, as has been pointed out by your counsel, there are a number of mitigating factors. First, you have pleaded guilty. The law requires me to take that fact into account and I do so in your favour. The community has by your plea been spared the time and cost of a trial but, in my view, much more significantly in the circumstances of this case, your victims and particularly Caitlin Hall have been spared the unhappiness, trauma and embarrassment of being cross-examined in the course of such a trial. This matter is not insignificant, taking into account the fact that Caitlin Hall has made two statements to police by way of statutory declaration which are substantially different from each other.

105. Furthermore, I take into account in your favour that you have at all times generally indicated your intention to plead guilty to the charge which has now been brought against you and that you did so as soon as you had an opportunity to do so.

108. I accept that you suffer from remorse. An ambulance driver, Simon Dellorossa, noted you to be holding the child, "crying uncontrollably" at the time of his attendance at your Chapel Street flat. In his statement MICA paramedic Patrick Kelly spoke of how he consoled you at Chapel Street and Senior Constable MacDonald stated that when she attended at the Royal Children's Hospital you were holding and nursing Jordan. This was approximately an hour after the doctors had pronounced his death. In her presence, that is in the presence of Senior Constable MacDonald, you said to Caitlin, "Tell your mother I am sorry".

111. You were interviewed by Detective Senior Sergeant Iddles on the afternoon of the death of Jordan and, as I said previously, again on 23 August 2003. Although I am satisfied beyond reasonable doubt that admissions made by you, as conceded by your counsel, were not necessarily full and frank, I accept, having viewed the video tapes, that your expressions of remorse and your statements that you never wanted to hurt Jordan were genuinely felt at the time.

114. I have been told something of your personal history and your circumstances. You are now aged 19 years. You have admitted before me to 42 prior convictions of which all but six were dealt with by the Children's Court between 1998 and February of 2002. Although a number of those convictions are trivial and insignificant, the nature of some prior convictions are relevant to my task today. In particular, the charges of armed robbery, robbery, being a prohibited person in possession of a firearm of which you were convicted at the Children's Court in February 2002, and of reckless conduct endangering persons, causing serious injury recklessly in relation to the use of a motor car, of which you were convicted in the Magistrates' Court at Melbourne in February 2002, are of relevance to my task of sentencing you today.

117. Evidence has been led on your behalf. I heard from Mr Healey, a psychologist, who examined you at Port Phillip Prison on 3 July 2004. Mr Healey obtained a history that you were born in Carlton and were in general raised by your mother. Your father had little to do with you in your formative years. Your mother developed a relationship with another person in the course of your childhood. That person was a man who was aggressive to her and it would appear to you. You had also witnessed your father striking your mother when you were a young child. You attended primary schools in Port Melbourne and Albert Park and then Hobsons Bay Secondary College, which college you were asked to leave at the age of 14 by reason of theft, with others, of a master key. You attended Caulfield Park Community School until the end of Year 10. However, throughout your schooling you encountered difficulties due to non-conformity and irregular attendance. I take note of a Department of Human Services report which was tendered before me and dated 15 May 2001. This report gave a history of child protection notifications involving you from 1992 when you were aged approximately eight years and suggesting that you had been at that time the subject of verbal and emotional abuse.

120. You have worked as a trolley boy at a supermarket and have undertaken a three month landscape gardening traineeship through Centrelink. Intellectual testing conducted by Mr Healey reveals that you are indeed a most intelligent young man with a full scale IQ of 118. This indicates that there might be, if you change your ways, some prospect for rehabilitation. Although you have consistently used cannabis, you do not appear to have become entrapped by other drugs as so many young people your age with similar backgrounds have. It is notable that you told Mr Healey, only some weeks ago, that you accept blame for what happened to your child and that you agreed with him, that your conduct was affected by cannabis smoking. You expressed considerable remorse to Mr Healey and you have engaged in several acts of self-harm whilst in prison. Indeed, you have been prescribed an anti-depressant in this regard. Mr Healey informed me that you had a photo of your son in your prison cell and you left Mr Healey with no doubt as to the genuine sorrow you experienced over the death of your son. Indeed, Caitlin Hall at the committal, perhaps generously, acknowledged the effect of the death of your son upon you when she said, at p.64, "He killed his son, that's enough punishment for himself".

123. I accept that the realisation of what you have done will bear heavily upon you for a long time. It will of course also cause Jordan's mother Caitlin much, if not more, grief, as likely as not for the rest of her life.

126. Your counsel has submitted that you were at the time of these matters an extremely immature individual who, by reason of circumstances, was put in a situation of parenting that you were "utterly unfitted for", to use his words, by way of training and by way of background. However, that said, he relies upon the evidence of Ms Pitney, the child health nurse who looked after Jordan. Ms Pitney gave evidence at the committal that you were interested in matters of parenting and feeding. She said that you spoke to her in a responsive and caring way about the baby although you were very young. Indeed, she said that you had pointed out to her some problems such as a red streak in Jordan's eye and a rash which she thought was a thrush rash. She said that she discussed with you the use of an anti-fungal cream and you told her that you had read about that in a book. You also revealed some knowledge of parenting in your interview with police. Indeed, the manner in which you applied CPR was consistent with an appropriate way of applying CPR to a baby.

129. Mr Morrissey submits that this evidence reveals that you were endeavouring to be a good parent but in reality you were young, under stress and ill suited to the task of being a parent. I accept that there is considerable weight in this proposition.

132. Nevertheless, notwithstanding your youth, the vulnerability of your son must have been obvious to you, and the risk that he might suffer serious injury if you took out your frustrations upon him in a physical way must have been equally obvious.

135. It is of course significant that you were only 18 years of age, and that your circumstances were such that you, and of course Caitlin as well, were by reason of Jordan's birth, put into a situation, financially, socially and domestically in which there were considerable pressures placed upon both of you. One can understand that under stress a young, immature person can lose control, but the parents of children have an obligation to their children, particularly when they are very little, to take care of them, and the courts, while recognising that frustration and anger can arise in a parent because of a child crying, or engaging in otherwise normal conduct for a child, must seek to deter assaults on little children.

138. For these reasons, as well as matters personal to you such as the chances of your rehabilitation and issues of special deterrence, I must, amongst other things, take into account issues of general deterrence. Regrettably, serious harm to children by violence from their parents or their carers is not uncommon in our community. For this reason, and notwithstanding your youth and lack of maturity and, to some degree, your incapacity to fulfil your obligations as a parent, the issue of general deterrence remains a significant issue. Furthermore, I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and to impose a just punishment.

141. I readily acknowledge that it is a grave step indeed to impose a term of imprisonment in an adult prison upon a youthful offender as you are. Nevertheless, in all of the circumstances and notwithstanding the weight of matters put before me by Mr Morrissey of counsel on your behalf, I have no alternative but to impose a sentence of imprisonment. In my view, a term of youth detention, as submitted by Mr Morrissey to be an appropriate sentence, would be a totally inadequate sentence and would not reflect the seriousness of this offence. That said, however, I recognise that imprisonment at your young age will be difficult for you. It is most important and, indeed, in my view, it is clearly in the community interest that you have the opportunity to engage in suitable anger management programs and that you have a sufficiently long period of conditional supervised release to ensure your appropriate reintegration into the community. The community interest will be served by you undertaking appropriate programs such as anger management programs and perhaps parenting programs in the community and, furthermore, by the careful supervision of you in the community. For that reason I consider a somewhat longer than usual parole period is appropriate. It will of course be a matter, depending upon your progress in prison, for the Parole Board to decide when you should be released.

144. I sentence you to five years six months imprisonment and I direct that you not be eligible for parole until you have served three years imprisonment.

147. I declare that you have served 355 days pre-sentence detention pursuant to s.18 of the Sentencing Act and I direct that the same be noted in the records of the court.