Facts
11The offender formed a relationship with Tanilla's mother and moved into her house some two months prior to the period during which the injuries were inflicted. The mother, Ms Deaves, had three children, the youngest of whom was the deceased. The evidence before the Court, including material adduced from the offender, referred to the relationship between the offender and the three children and the fact that the deceased, and her sisters, referred to the offender as "Daddy"; a term of which the offender was particularly proud.
12In the short time that the offender lived with Ms Deaves and her three children, he assumed the care of the deceased and acted in the role of parent.
13In the course of the trial, the Crown adduced tendency evidence relating to the offender's treatment of the deceased in order to prove that he had a tendency to conduct himself in a particular way and had a state of mind relevant to proving that the fatal injuries were inflicted with murderous intent.
14The tendency evidence included the abuse of Tanilla in the street shortly after the offender commenced cohabiting with the family. It also included an incident a month before the infliction of the fatal injuries in which the neighbours heard the offender whipping Tanilla with a belt or rod. The tendency evidence was compelling.
15That evidence, whilst available to the Crown to prove the tendency of the offender to act in a particular way or have a state of mind, is not evidence of the conduct directly associated with the infliction of the fatal injuries and cannot be (and is not) taken into account in assessing the objective seriousness of the offence.
16There are other incidents that establish the context in which the offence was committed, although not all are relevant in assessing the objective circumstances of the offence for sentencing purposes. Evidence was adduced, from an independent witness, of the offender punishing Tanilla. This punishment included forcing her to run laps from one end of a lounge/living area to the other end and back over a significant period of time. At the time the child had a bandaged hand and the offender informed this witness that the child had dropped a toolbox on her hand.
17The toolbox was tendered in evidence. It is heavy. It remains heavy whether or not it contained a metal head mallet, the inclusion of which created a minor controversy. I do not accept that the child would have picked up that toolbox. She did not drop it on her own hand. That issue is largely irrelevant to anything the Court must now decide.
18The aspect of this witness' evidence that is relevant is the exchange between them in which the offender said:
"I can make her scream, watch this." (Transcript Page 217)
And at a later stage:
"Watch me make her scream. I'll tell her I'm getting the belt." (Transcript Page 219)
At that point the offender told the child he was getting the belt and she screamed.
19The foregoing is probative of the state of mind of the offender when punishing Tanilla. When the witness rebuked the offender that the punishment was "a bit harsh for the little three year old" his response was that "she deserves it, for not behaving herself." (Transcript 219)
20Tanilla was not yet three at the time that these incidents were occurring.
21By the end of August 2011, the offender was engaged in a process that was intended to toilet train Tanilla. That process included punishment of the kind already described, namely, the running of laps of the lounge room, hitting the child with objects, including an electric cord, forcing the child to stand in one place for extended periods and whipping the child (to the extent that may be different from the foregoing) with a cord or belt. These punishments were inflicted by the offender.
22The offender submitted that I should not accept fully the evidence of Ms Deaves, the mother of the deceased who gave evidence of these episodes. During the course of the trial, repeated in directions, I warned the jury in relation to their acceptance of Ms Deaves' evidence because of the risk that she had minimised her involvement in the offences in question and her involvement in the offence itself together with other factors such as reasons to lie about the offender and the inconsistent statements she gave to police. Nevertheless, the jury, in my view correctly, accepted her evidence, at least in relevant respects. As do I.
23In the period leading up to when the fatal injuries were inflicted, Ms Deaves attested to the fact that Warren Ross was fine about Tanilla soiling herself at first but later became annoyed and very angry about it (Transcript 482).
24In the days leading to her death, the offender was punishing Tanilla in the pattern of the previous punishments, namely the running of laps and hitting her with a belt or cord (Transcript 496). Ms Deaves tried to stop him and the offender ceased for a short time.
25After smoking some marijuana, he again required Tanilla to run laps. Ms Deaves went to the kitchen to cook dinner and while there Tanilla had an accident, soiling herself. The offender took Tanilla to the bathroom and the shower was run. Ms Deaves heard a thud from the bathroom, while she was in the kitchen.
26In her evidence, Ms Deaves described the noise as "a shuddering thud, like something hitting glass". She went to the bathroom and saw that the offender had hold of Tanilla by her hair; the shower was running; the door was open. The shower was cold.
27The offender said to Tanilla:
"You don't like cold water, do you? You don't shit in my house. You're an animal".
28Tanilla was shivering. Ms Deaves said "that's enough; she doesn't look good." For that comment, the offender slapped Ms Deaves in the face.
29The offender then banged Tanilla's head, which he was still holding, into the glass of the shower twice. The shower was still running. Water was everywhere. Tanilla looked drowsy, as if she was going to faint.
30The offender then shoved Ms Deaves back into the hallway where she slid in water. There was an argument.
31The offender then took Tanilla to the toilet. He held her over the toilet by one leg; she started to cry and scream.
32The offender was shouting at Tanilla and said: "you're a black dog; you're a black cunt!" He held her over the toilet for some period and then took Tanilla back into the shower. The water was "freezing cold". The offender turned to Ms Deaves and said "get her fucking dressed".
33There was water everywhere from the constant running of the shower. The shower was then turned off. Tanilla came out of the shower but could hardly stand. She dropped to the floor where the offender kicked her, or pushed her with his leg, so that Tanilla slid across the floor on her stomach into the linen cupboard, a distance of approximately a metre. Her head hit the linen cupboard.
34It seems that Tanilla bounced back from the linen closet, and the offender kicked her or slid her using his foot. Once more, Tanilla's head hit the linen cupboard.
35There are stains on the linen cupboard that are consistent with the foregoing story. It is not clear whether the fatal injuries were caused by the banging of the head in the shower or by the banging of the head on the linen cupboard. In either case, it was the conduct of the offender that occasioned it. On one view, it may have been both.
36Despite the caution with which I approach the evidence of Ms Deaves, I accept the foregoing from her evidence and I accept those facts beyond reasonable doubt save for the fact that Ms Deaves has exaggerated her attempt to intervene to assist her daughter, a matter which has no bearing on the offender's culpability.
37The deceased was dressed. The offender told Ms Deaves to wake Tanilla up. The offender grabbed Tanilla by the arm and leg and threw her onto the mattress.
38Ms Deaves placed Tanilla in a double stroller beside the mattress, in accordance with the subsequent instructions of the offender. She sought to warm her by placing a blanket over her. Tanilla was still breathing.
39The next morning, Ms Deaves took oldest child to school. They walked. She picked her up in the afternoon and told her that Tanilla was sick.
40It matters little for the purposes of this exercise, but it seems the events in the shower and the occasioning of the fatal injuries occurred on a Thursday night. Tanilla was left in the pram throughout Thursday night and Friday.
41It would have been plain to all, and, on the evidence, was plain to both the offender and Ms Deaves, that Tanilla was extremely distressed and ill from the beating. Nevertheless, the child was left in the pram and was not taken for medical attention.
42Tanilla died early Saturday morning. The medical evidence, adduced during the trial, establishes that the injuries inflicted by the offender as he repeatedly assaulted her were the cause of death. She died of a cerebral haematoma caused by severe haemorrhaging. If medical attention had been sought immediately there was a good chance that the child would have lived, and may not have been permanently affected by the injuries. That chance diminished over the time during which Ms Deaves and the offender left the child unattended.
43The autopsy revealed significant injuries on the deceased. Most of those injuries do not relate to the infliction of the fatal injuries and I do not take them into account in determining the objective seriousness of the murder for sentencing purposes.
44The fact, if it be the fact, that Tanilla was kept from day care because of bruising is, it seems to me, totally irrelevant to the sentencing exercise in which I am engaged. That sentencing exercise must concentrate on the infliction of the fatal injuries, the context in which those fatal injuries occurred and the treatment of the deceased after the injuries were inflicted.
45Nevertheless, I cannot avoid the comment that this family and these children were brought to the attention of authorities. The authorities visited the home. Yet obvious injuries seem not to have caused sufficient alarm to warrant the children being taken from the home.
46From the foregoing factual conclusions, I find the following matters as relevant to sentence. First and foremost, the victim was a child of two years and eight months in the care of her mother and the offender. Secondly, it was no part of the Crown case that the offender had an intention to kill when he inflicted the injuries. I do find, beyond reasonable doubt, he intended to cause her grievous bodily harm.
47The circumstances of this case render the distinction between an intention to cause grievous bodily harm and reckless indifference to human life of limited value in terms of the objective seriousness of the offence and the ultimate sentence that would be imposed as a consequence.
48Nevertheless, I make it clear that I consider the actions of the offender were such that he had an intention to cause grievous bodily harm at the time he committed this offence.
49I accept that the infliction of the injuries from which the child died were neither planned nor premeditated. Further, notwithstanding the statements recited above as to the colour of the deceased, I do not consider that the injuries were inflicted because of hatred or prejudice against a group of people.
50In the course of oral submissions, the Court was urged to conclude that the offence was committed in a manner that was "spontaneous". I do not consider the infliction of the injuries to be spontaneous. There is a difference between spontaneity, on the one hand, and a lack of planning or premeditation, on the other hand. In this instance, the injuries were unplanned and not premeditated, but the conduct was the culmination of two to three days of the deliberate infliction of severe corporal punishment.