R v Thurlow [2007] NSWSC 1203 | Case summary

REASONS FOR SENTENCE 1 HER HONOUR: Raeshelle Thurlow pleaded guilty in the Local Court to the manslaughter of the deceased on 20 July 2004. She also pleaded guilty to a charge that on or about 11 September 2006 she did an act with intent to pervert the course of justice, contrary to s. 319 of the Crimes Act 1900. She was committed for sentence to this Court where she adhered to her plea in each case. A further charge under s. 319 is to be taken into account under Form 1. 2 The factual background is as follows. The deceased was born in March 2004 and was 16 weeks old at the time of her death. Her mother was CE and her father was JW. Late in 2003, before the deceased's birth, her parents separated and her father, JW, commenced a de facto relationship with the offender. It was agreed that the deceased's parents would have joint custody of her. However this arrangement was changed in May 2004 when they agreed that JW and the offender would become the deceased's primary carers. 3 At that time JW and the offender were living in Dubbo. They were both addicted to heroin. About two weeks before the deceased's death JW commenced an outpatient methadone programme at Dubbo Base Hospital. The offender tried to enrol into this programme but was unable to gain entry. 4 The deceased was very unwell in the days leading up to her death. She was not feeding or sleeping normally and she demonstrated cold-like symptoms. She was not taken to a medical practitioner. Her disturbed sleep patterns meant that the offender also had little sleep during this period. 5 On the morning of Tuesday 20 July 2004 JW left home between 8.50 and 9.00 am to go to the Dubbo Base Hospital for his drug treatment programme. When he left, the deceased was apparently alive, awake, uninjured and interacting normally with him. About an hour later, at approximately 10.00 am, the offender arrived at the home of the deceased's mother, CE, which was a very short walk (about 100 metres) from the offender's residence. The offender was described as panicky and puffing as she ran into the house. She held out the baby who was wrapped in a rug, and said to CE, "Does she look alright to you?" CE said that she knew at once that the baby was dead. She was blue around the lips, she had no pulse and her skin was cold. CE immediately made a 000 call. An ambulance arrived shortly afterwards at 10.10 am. All attempts to resuscitate the deceased by paramedics, and later by staff at the Dubbo Base Hospital, were unsuccessful. She was declared dead at 10.45 that morning. 6 A post-mortem examination showed that the deceased had died from blunt force head injury. She had sustained a comminuted fracture of the skull, which Dr Kieran Moran described as a "massive head injury" which would have resulted in immediate unconsciousness. 7 Over the next eighteen months the offender was interviewed on three occasions in relation to the baby's death. The first was on the day she died, 20 July 2004. The second interview was five days later, on 25 July 2004, and the third interview was on 11 December 2005. In each of these interviews the offender denied that she had done anything to cause harm to the deceased and denied any knowledge of how she had sustained her injuries. She gave varying accounts of the events of that morning. Essentially, however, she said that not long after JW had left the home, she had walked from the kitchen into the lounge room and found the deceased lying on the futon bed having obvious trouble breathing. She picked the baby up and tried various forms of assistance without success. After a while she started to panic about the baby's condition so she wrapped her in a blanket and took her to CE's home. The offender maintained that the baby was still alive at this point. However, this was disputed by the deceased's mother, CE, who said that the baby was obviously dead when she first saw her. 8 By the time of the third interview, in December 2005, the investigating police were firmly of the view that the offender was responsible for the deceased's fatal injury. Indeed they informed her in direct terms of this fact. After she maintained her denials in that interview, the investigators obtained warrants to intercept telephone conversations between her and Jamie Waring and to install a listening device in their home. The conversations thus intercepted showed that the offender had given JW the same version of events regarding the deceased's death as she had given to the police and that JW genuinely believed in the offender's innocence. 9 On 20 July 2006, two years to the day after the deceased's death, the offender was arrested and taken to Bathurst Police Station where a further interview was conducted. On this occasion the offender finally admitted that it was she who was responsible for the deceased's fatal injuries. She said that after JW had left that morning she became increasingly frustrated by the baby's incessant crying. She herself was extremely tired, having been kept awake by the baby's crying. She was also under great stress, having had no drugs in the previous couple of days. She said that the deceased's injury occurred when she, the offender, was putting her down upon the futon bed. She put her down, at an angle to the bed, with considerable force. Indeed, at one point she described it as "slamming her down". In the process, the baby's head struck one of the wooden armrests on the side of the bed. The offender saw a small red mark at the back of her head. She said there was no other observable sign of injury. She then left the room for a few minutes. When she returned the deceased was turning blue and was having significant difficulty in breathing. At some stage she realised that the baby was unconscious. The offender did not seek medical assistance but, in a panic, wrapped the baby in a rug and ran to CE's home. She said on numerous occasions that the killing was an accident. She did not intend to kill or injure the child. She wanted to stop her from crying, but not by rendering her unconscious. She admitted that her action was reckless and careless. She expressed great regret at what she had done. 10 After this interview the offender was charged with the murder of the deceased. She was taken into custody where she has remained ever since. 11 For the first five days of her incarceration the offender was detained at the Bathurst Correctional Centre. Whilst there, the offender shared a cell for a short time, approximately two hours, with another inmate, Marcia Davidson, whom the offender had never met before. The offender asked Ms Davidson to confess to having murdered the deceased saying that, if she agreed to do so, JW would ensure that Ms Davidson's fiancée would be brought to visit her. Ms Davidson refused to assist. Nevertheless, the offender wrote down a number of details relating to the deceased's death and asked Ms Davidson to think about it. Later that day a letter from the offender was pushed under Ms Davidson's cell door. Amongst other things it thanked Ms Davidson "for telling the truth." A separate page set out an account, apparently to be given by Ms Davidson, describing how she had been in the offender's home on the morning of the deceased's death, had struck the baby on the back of her head, and had then run off. The statement said that the offender had been charged for what she, Ms Davidson, had done. 12 The offender wrote again to Ms Davidson on 11 September 2006 asking whether she had confessed to the prison governor and the police officers that she was the one who had killed the deceased. The offender also wrote various letters to the authorities saying that it was Ms Davidson, not she, who had caused the baby's death. She said that the admissions which she made in her interview on 20 July 2006 were false, and had been induced by the police officers telling her that she would be given bail if she confessed to her involvement in the killing. 13 The offender's attempt to induce Ms Davidson to lie to the police and make a false statement, intending to deflect the investigation and prosecution of the offence of killing the deceased, constituted the offence under s. 319 to which the offender has pleaded guilty. 14 On 11 September 2006 the offender wrote to JW asking him, in effect, to tell police that Ms Davidson was in their home on the morning of the deceased's death. Mr Waring did not respond. He was later interviewed about this matter and confirmed that no-one else was at their home on the morning of the death of the deceased. 15 The further offence of attempting to pervert the course of justice, to be taken into account under Form 1, consists of the offender's attempt to induce JW to lie to the police by making this false statement. 16 I turn now to discuss the offender's personal background. Much of this comes from a pre-sentence report provided by the Probation and Parole Service. 17 The offender is now 23 years old, having been born on 24 May 1984. When she was nine years old her parents separated and she was left in the care of her father. For some years thereafter she had minimal contact with her mother. On all accounts her father was neither an attentive nor a supportive parent and was sometimes abusive. When she was about 12 years old the offender was sexually assaulted by several adult men. The matter was reported to the police and the perpetrators identified, but there was insufficient evidence for a conviction. 18 The offender frequently truanted from school and often lied to her father about her whereabouts. In fact she spent much of her time with her friends consuming drugs and alcohol. She was only 10 years old when she started taking cannabis and 12 years old when she started drinking alcohol. Thereafter she had regular bouts of binge drinking with attendant blackouts. She was 16 when she started using heroin and became addicted not long afterwards, an addiction which she was still suffering at the time of the death of the deceased. She left her father's home when she was about 16 and moved in with a man with whom she had a relationship. She left that relationship about two years later because of "domestic violence and drugs", as she put it. It is clear that her relationship with JW was also a volatile one which was sometimes marked with violence on his part. 19 The offender's education was, at best, very disrupted. She frequently changed schools as her family moved to different towns. She often truanted and finally left school at the age of 14 without having completed year 8. Thereafter she undertook various forms of casual work from time to time but acquired no particular skills. 20 The offender's father has started a new family and has two very young children. It appears that, since the manslaughter offence came to light, he has distanced himself from the offender. The representatives of the Probation and Parole Service were unable to contact him for the purpose of their report. 21 Not altogether surprisingly, given this disrupted background, the offender has had other brushes with the law, most of them committed after the death of the deceased. The only previous offence was in April 2001, when the offender was 16 years old. On that occasion she was placed upon a bond for two charges of maliciously damaging property. Subsequently, in January and June 2006, she was convicted in the Dubbo Local Court of various offences, the most serious being break, enter and steal and being in possession of goods suspected of being stolen. In relation to these latter offences she was given a six-month suspended sentence. 22 The offender had already started to combat her heroin addiction before going into custody. She commenced a methadone programme in January 2006. She has continued this programme in prison and has been gradually decreasing her methadone dosage. She intends to continue reducing the dosage until she discontinues taking methadone entirely. Whilst in prison she has been attending monthly meetings of Narcotics Anonymous. She says that she never wants to use either drugs or methadone again. 23 Prison has not been easy for the offender. Because of the nature of her principal offence, she has been held in protective custody, and is likely to remain so for the balance of her sentence. Nevertheless, she has been assaulted physically and verbally on a number of occasions. She has undertaken a number of educational and vocational courses and has volunteered to do additional duties. The particular hardship which the offender suffers in custody by reason of her offence is a relevant matter on sentence and one which I have taken into acount. 24 An issue arose at the hearing before me as to the precise action of the offender which led to the deceased's injury. The offender gave evidence on the first day of the sentence hearing, in August this year, in which she was asked to demonstrate how she held the baby when she dropped her onto the futon bed. When the matter resumed a little over two months later the senior Crown Prosecutor sought and was given leave to adduce further evidence on this issue. The evidence in question arose from the police interviews with the offender in which she was twice asked to demonstrate her actions in this regard. It was submitted by the Crown Prosecutor that the demonstration given in Court before me was significantly different from the descriptions given during her earlier interview. 25 I do not regard this issue as being of great significance. The severity of the injury to the deceased's skull makes it clear that her head must have struck the wooden armrest with very considerable force. It was an extremely dangerous action, as the results clearly show. Indeed, her plea of guilty to manslaughter acknowledges that it was an unlawful and dangerous act. It led directly and almost immediately to the baby's death. This being the case, the precise placement of the offender's hands and arms at the time are, in my view, not of major significance. 26 Whilst the offender has, since July 2006, accepted responsibility for the deceased's injury, she has continually asserted that the injury itself was unintended and that she did not mean to harm the baby. This is the basis upon which she is to be sentenced, given that the Crown has accepted her plea of guilty to manslaughter. 27 On the first day of the sentencing hearing the Crown sought to adduce evidence of other injuries inflicted upon the deceased, not associated with her death, which the Crown suggested were inflicted by the offender. No charges had been laid against the offender in relation to any such assaults. This being the case, the Crown did not seek to use this evidence as an aggravating feature, but to meet a proposition put by the defence that this was an isolated incident. However, Ms Rigg, who appeared for the offender, expressly disavowed such a submission. Accordingly, I rejected the evidence on this issue. As a result, although there is evidence of only one act of violence against the deceased, I cannot and do not take into account, as a relevant mitigating factor, that this was an isolated act. I simply do not know whether it was or not. 28 This takes me to the factors which are required to be taken into account under s21A of the Crimes (Sentencing Procedure) Act 1999. The single aggravating factor, but a highly significant one, is the extreme vulnerability of the victim as a very young baby, coupled with the fact that she was entrusted to the care of the offender. 29 There are a number of factors to be taken into account by way of mitigation. It is clear that the offence was not part of a planned or organised criminal activity. At the time of the killing the offender had no significant record of previous convictions. Her prospects of rehabilitation are, I think, generally good. Certainly the possibility of a repetition of this type of offence is virtually zero. Given the offender's long history of drug and alcohol abuse, her criminal record is a relatively minor one. Most significantly, she has committed no offences of any kind since commencing the methadone programme in January 2006. I accept that she now has some real insight into her drug problems and reasonable prospects of remaining drug free upon her release. This will very much depend on the support which will be available to her at that time. If she does remain drug free I think that the chances of her committing further criminal offences are very low. 30 The offender was barely 20 years old when she committed this offence. Given the paucity of emotional support she had received thus far in her life, her youth must be regarded as a mitigating factor, albeit not a major one in the circumstances of this case. 31 I accept that the offender is genuinely remorseful for her actions. The Crown has submitted that her delay in admitting responsibility for the deceased's death, and her subsequent attempts to incriminate Ms Davidson in the matter, indicate an absence of genuine remorse. On the other hand, she entered a plea of guilty to all charges in the Local Court and has adhered to her plea ever since. This will result in a significant reduction of sentence as I shall discuss shortly. I mention it here because it is also relevant to contrition and remorse. I have had the opportunity of observing the offender's reactions both during the videoed interview of 20 July 2006 and during the course of these proceedings. I accept that she is genuinely remorseful for her actions in bringing about the death of this vulnerable young baby. 32 Putting aside s21A, a further matter which has been raised in this case relates to the delay of two years between the commission of the offence and the charging of the offender. Given that it was the offender's repeated denials of responsibility for the deceased's death which led to this delay, it must in my view be treated as a neutral factor. Its sole relevance is that she was able to commence her drug rehabilitation programme six months before she went into custody, which in turn is relevant to her prospects of rehabilitation. 33 A victim impact statement, signed by the deceased's mother, CE was placed into evidence. This testifies movingly to the effect upon CE and her older children of the loss of the deceased. I take this into account in the manner provided by the legislation. 34 As Ms Rigg has acknowledged, the charge of attempting to pervert the course of justice is a very serious one. It involved an attempt to implicate an innocent person in the commission of an extremely serious crime. It was a charge of murder at that stage. Moreover, the attempt was maintained over a period of at least two months. On the other hand, it was an attempt that had a sense of unreality about it. Ms Davidson never agreed with the offender to accept responsibility for the baby's death, yet the offender continued to proceed upon the assumption that she had agreed to do so. There was no possibility whatsoever of the attempt succeeding. Ms Davidson lived in Albury, and had never been to Dubbo in her life. Ms Rigg very realistically conceded that in relation to s319 offences, the fact that the attempt was doomed from the outset is not as significant as it might be for other offences, as it is the intention which is the essence of this offence. However the unrealistic nature of the attempt in this case serves, in my view, to demonstrate how disturbed the offender was at that time. 35 The maximum penalty for this offence is 14 years imprisonment. 36 I turn now to the manslaughter offence. It goes without saying that the killing of a defenceless young child by a person in a position of trust is extremely serious, albeit that it was not accompanied by any intention to kill or inflict grievous bodily harm. In this regard I refer to the judgment of Spigelman CJ in The Queen v Hoerler [2004] NSWCCA 184. As the Chief Justice observed, the element of retribution must play a prominent role in the sentencing of such cases. One relevant matter in this case is that the action of the offender causing the fatal injury consisted of a single act. Certainly it was a forceful and violent act: so much so that it caused immediate and irremediable brain damage. However, it is to be contrasted with a situation in which a series of actions over time result in the death of a child. The personal culpability of the offender is also a very significant matter on sentence. As the Chief Justice observed, this may vary from a carer who acts out of despair on the one hand, to the vicious acts of a sadist on the other. In the present case I accept that the offender was not in complete control of herself. She was suffering from drug withdrawal, sleeplessness and frustration at her inability to stop the baby crying. She had minimal personal resources to draw upon. She herself had in many ways been a victim for much of her life. Not that this exonerates her from responsibility for her actions but it is certainly relevant when considering her personal culpability. 37 As to the structure of the sentences: in relation to the offence of attempting to pervert the course of justice I propose to impose both a non-parole period and a balance of term, in order to mark the seriousness of this offence. However, the balance of this term will be entirely subsumed within the sentence for manslaughter, which will commence at the expiration of the earlier non-parole period. 38 In my view special circumstances clearly exist in this case which justify a departure from the normal ratio between the total sentence and the non-parole period. The combination of the various matters already mentioned, together with the particular hardship to this offender of spending her time on protection, combine to form such circumstances. The offender is clearly a highly vulnerable person, and will need a great deal of support and assistance upon her release from custody. Further, the accumulation of the two sentences requires a consideration of the principle of totality which will not always be accommodated by applying the statutory ratios. 39 The offender's plea of guilty to all charges, which were entered in the Local Court and adhered to thereafter, entitle her to a full discount of 25%. The sentences I am about to impose reflect this discount. 40 Raeshelle Thurlow: for the offence of doing an act with the intention of perverting the course of justice I sentence you to a term of imprisonment consisting of a non-parole period of nine months and a balance of term of seven months. The non-parole period is to commence on 20 July 2006 and expire on 19 April 2007. 41 In relation to the offence of manslaughter, and taking into account the offence in Form 1, I sentence you to a term of imprisonment with a non-parole period of four years and three months with a balance of term of two years and six months. The non-parole period is to date from 20 April 2007 and expire on 19 July 2011, the date upon which you will become eligible to be released on parole. The balance of term is to commence on 20 July 2011 and to expire on 19 January 2014.

R v Thurlow

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