R v Woodland

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: On 26 March 2001, the prisoner pleaded guilty to the manslaughter of his two year old son Jason, occurring on 8 July 1999. That plea was accepted in full satisfaction of an indictment charging him with murder. It may be taken as timely, having regard to the circumstance that it was offered as soon as it became clear that the Crown would accept a plea to the lesser charge. FACTS 2 The deceased, Jason, was born on 17 May 1997. At the time his mother, Sarah Eadie, was aged almost eighteen years, having become pregnant during her last year at school, and the prisoner was a little older. Following the birth, the three of them lived in a bedroom which she had occupied at the home of her parents at West Gosford. 3 In June 1997, when Jason was five weeks old, he was removed from his parents by the Department of Community Services, when it became apparent that he had suffered non-accidental head injuries comprising acute and chronic subdural haematomas and bilateral retinal haemorrhages, consistent with shaken baby syndrome. The injuries were such as to require the insertion of a shunt to drain off the intracranial swelling. 4 The child was later placed in the care of the prisoner's mother. In May 1998, a two year wardship order was made with provision for the parents to have access to him under the supervision of the maternal grandparents with a view to his later restoration. 5 Over the succeeding period, there was some limited counselling, although it appears from the material placed before me, including the ERISP conducted with the prisoner, that his participation was limited and that he found the few sessions which he attended to be of no value. During this period, Jason's mother, Sarah, admitted to having caused the shaking injuries to the baby in 1997, although whether that was the case or not is perhaps questionable, since there is some suggestion that it was necessary for one or other of the parents to make that admission as a precondition for restoration. There is, however, no other evidence to show how the injury was sustained or by whom it was occasioned. 6 In February 1999, Jason was restored to the custody of his parents. A condition was imposed that they resume living with him at the home of Sarah's parents, who, according to a statement from the case officer, Louise Stewart, were expected to monitor the situation and to advise the Department if any problems arose. Ms Stewart had a clear recollection of only one visit by her to the those premises between February 1999 and the time of Jason's death. On other occasions that she called at the premises, she said that there was nobody home. There may have been some other visits, but she was uncertain in that regard. In any event, she saw no cause for concern on the occasion of the visit which she did recall. 7 The arrangements, concerning supervision by the maternal parents of the ongoing situation, were made not withstanding the fact that, before Jason's initial injuries, there had been a good deal of tension in the home associated with the fact that Mrs Eadie had tended to take over the care and management of the child. This had led to arguments and frustration on the part of the prisoner and Sarah, since they felt excluded and somewhat inadequate in their parenting role. 8 On the occasion of their return, they moved downstairs into a caravan located in the garden, where they lived with Jason and a pet dog. According to the prisoner, the pre-existing problems persisted, particularly in relation to matters of discipline for the kinds of misbehavior which are typical of a two year old. An aggravating factor in this regard, which the prisoner described, was the attitude of the grandparents, who he said agreed to various requests made of them in relation to the boy, yet when he was with them, they did the very opposite of what had been asked. As a consequence, the boy often visited them without his parents' consent, and when he returned to their caravan, he tended to misbehave. 9 The prisoner and Sarah had moved to Newcastle when Jason had been removed from them. Upon moving back to West Gosford, the prisoner was forced to give up the employment which he had secured. While living back at West Gosford, he was only able to secure casual employment as a removalist's assistant. He, accordingly, had time on his hands which he used to play golf, to sit around the garden, to play computer games, and to smoke cannabis, a habit he shared with Sarah but which he said he had given up some weeks before this offence. As a consequence, the various members of the family were in close physical contact, with the almost inevitable result that arguments developed and frustration grew. 10 It would appear on the prisoner's account that in the course of the period between reinstatement and the killing of Jason, DOCS provided very little by way of supervision, even though the situation should have been assessed as potentially volatile. That this was the case is demonstrated by the very detailed and critical report of Toni Single, a clinical psychologist employed by the John Hunter Hospital at Newcastle, which had been prepared for DOCS following removal of the boy in 1997. This report disclosed a quite dysfunctional situation of an immature father who had been assessed as having a significant problem of aggression and anger; a passive mother who deferred towards him; a paternal grandmother who appeared unaccepting of the problems which had emerged, and who lacked intimacy or attunement with the child; and maternal grandparents who had seemingly not been prepared to accept the non-accidental nature of the earlier injuries, and who appeared defensive of the parents. 11 In what should have been a strong warning for the future, Ms Single noted, additionally, that the prisoner and Sarah were defensive of one another, that they tended to pass the blame for the child's injuries to others, and that the baby was in her assessment in the "highest risk category for reinjury". 12 The prisoner said that after the restoration, he had twice tried to obtain assistance from DOCS in relation to the difficulties which had developed and which had become more acute. In particular, he had made inquiries as to the possibility of them securing Housing Commission accommodation elsewhere. No help was forthcoming, according to him. Additionally, the material tendered on sentence would tend to show that there was no regime in place for regular medical checkup of the child, or at least none that was enforced. 13 Regrettably, over the period of five months before his death, it appears that the child suffered a number of other injuries, which were revealed when he was x-rayed and examined after being received into hospital following the incident which caused his death. These investigations showed that he had suffered a number of fractures of the ribs and of the left radius and ulnar, which were of some months duration and resolving. They also revealed a number of bruises to various parts of his body which were relatively recent, including extensive bruising to his lower back and buttocks, as well as bruises to his face and ear. 14 The prisoner has acknowledged that he had become accustomed to yelling at and striking the boy across the face and on the buttocks over this period, when he misbehaved and when he felt frustrated. He has consistently stated that these acts did no more than cause the boy bruising, and had led him to be asked to be hugged, a response which made him feel very bad and inferior. He accepted that on some occasions he had not been able to control himself, although he said that having begun to hit Jason, he was able to stop himself. He could not, or would not, explain the number and seriousness of the older injuries that were apparent when the child was admitted to hospital and discovered at postmortem, other than to suggest that they may have been due to the acts of other persons, or the result of falls, or of playing in the garden with the dog. He disclosed that on occasions Sarah also had also struck Jason, although the disciplining of him had been largely left to himself. The prisoner accepted that two to three days before 8 July he had struck the boy vigorously on the buttocks, leaving the significant bruising which was apparent at postmortem in this region. 15 It was because the Crown could not prove by whom the earlier injuries were inflicted that it accepted the plea of guilty to manslaughter. In sentencing the prisoner, I propose to do no more than note their existence and to regard their relevance as confined to the fact that the prisoner must have been on notice, by reason of the 1997 events, and by reason of these further happenings, of the fragility of a young child, and of the potential consequences for him of physical abuse. I specifically record that I do not intend to punish him for uncharged events or for injuries which cannot be sheeted home to him. As I have observed, however, had the supervision of the family been more vigilant, or had the boy been taken in for regular medical checkups, then it is highly likely that this tragic event could have been avoided. 16 It is in the light of that history that the events of 8 July 1999 are to be understood. The evidence placed before me shows that earlier that day the prisoner went into Erina to buy a computer game, returning at mid morning. Sarah also left the premises for a while to buy lunch. 17 The prisoner was heard by Sarah's father to be yelling at the boy in an aggressive tone during the morning about not going to sleep. Whether Sarah was present or not at this time does not appear. 18 During the afternoon, Jason went up to see the grandparents without obtaining his parents' permission. Sarah brought him back down, at the request of the prisoner, who was very angry. A little while later the prisoner rammed the boy's head forcefully against the refrigerator door. Later, in the presence of Sarah, he placed him on a bench where he poked him repeatedly in the chest with his finger, yelling at him, and remonstrating with him for having been "sooky". 19 Sarah, it would seem, took exception to this, and they began to argue. While this was happening, Jason fell off the bench onto the floor striking his head again. The timing of this fall was said to have been about 3pm. Following this, attempts were made to comfort him. At one stage he vomited. Some little time later, about thirty minutes or so, it was suggested, he was noted to convulse. This continued for some time before he was put to bed, where he went quiet. The prisoner acknowledged that before this occurred he noted that his eyes were "dazey" and that he realised there was something seriously wrong. Later he was seen to be lying still in the bed and to be cold and blue. He was in cardiac arrest. CPR was commenced by the parents and the ambulance was summonsed. 20 Jason was conveyed to Gosford District Hospital with serious head injuries, arriving at about 8.50pm. He was later transferred to the Children's Hospital at Westmead, where he came under the care of Dr Michael Ryan, a consultant paediatrician. Following a brain perfusion scan, which failed to show evidence of cerebral blood flow, Jason was pronounced dead at 1pm the following day. Life support was later turned off. 21 The various investigations anti and postmortem revealed that apart from the older injuries mentioned, Jason had sustained bifrontal subdural haematomas, subarachnoid bleeding, and a posterior interhemispheric haemorrhage, leading to a significant increase in intracranial pressure, and to severe hypoxic brain damage. Additionally, there were found retinal haemorrhages in both fundi, and in all quadrants of both eyes, indicative of a severe closed head injury or of shaken baby syndrome. 22 Doctors Ryan, Ellis and Moran each said that the head injuries were inconsistent with having been the result of a simple fall from a bench. Rather, the findings were suggestive of high velocity impact to the head. 23 Although in his ERISP of 9 July 1999, and again on 19 July 1999, the prisoner attempted to downplay the degree of violence directed towards Jason on 8 July, and did not disclose ramming his head against the refrigerator, he was heard to admit to that act in a conversation with Sarah Eadie which was lawfully intercepted by a listening device on 15 July 1999. This intercept also clearly reveals that the prisoner's acceptance of his criminality, at that stage, was minimal, so far as he attempted to place most of the blame on DOCS for not making proper checks of their situation, and for not ensuring that the boy had regular visits to a doctor. The following passages illustrate his attitude in this respect: "See, what they should...See, what've, what...what DOCS should've done was made those regular checkups with Jason and also Jason should'a had to have regular checkups with the local GP to make sure there was no inside damage, internal damage that you can't see from the outside. That should've also taken place."

"I'm saying this is DOCS responsible, all of this."

Again omitting passages: "It would'a happened again you know. That's what should'a happened. He should have had a checkup at least every fucken two three four weeks or whatever, you know. And if he did cop any, any suffering from me it would've been noticed. Wouldn't it...it could've been prevented. And then that would've made me think 'shit', you know, 'I can't do that to him otherwise he'll end up dead'. And I would've have fucken dealt with everything in an entirely different way. Yeah that's where DOCS fucked up." 24 At the time of Jason's death, Sarah Eadie was in an advanced state of pregnancy with her second child. In a later conversation with the prisoner, there was some discussion concerning the possibility of her again claiming responsibility for the further injuries to Jason on the basis that she had "flipped out". To his credit, the prisoner did not accept that suggestion, although he also observed that it was her decision as to what she should do. 25 In light of this evidence, and in particular in the light of a statement provided by Sarah, in which she described the prisoner pushing Jason's head heavily against the refrigerator, I find that this was the act which brought about his death. The boy's condition may not have been assisted by the subsequent fall, and there may well have been some other blows to his head which have not been disclosed. However, the primary cause, I am satisfied, was the forceful impact with the refrigerator, for which the prisoner alone was responsible. 26 The Crown does not rely upon the failure of the prisoner to seek prompt medical attention, as a circumstance aggravating the offence of manslaughter which, on its case, was one of an unlawful and dangerous act. However, the ERISP does contain admissions by the prisoner to the effect that he was aware that Jason was hurt, and had something "pretty wrong with his head", but that medical attention was not sought. The reason for this lay in the fear which each of them held that this would lead to the boy being taken away again, and that the child which they were expecting might also be taken away. 27 The offence of manslaughter is one for which the maximum available sentence is one of imprisonment for 25 years. The offence involves the felonious taking of human life, and for that reason it has been recognised as a most serious crime: Hill (1981) 3 A Crim R 397 at 402. The value, which the community places upon the preservation of human life, is reflected by the need to have conduct involved in its taking denounced by a sentence appropriate to the circumstances of the case: McDonald NSWCCA 12 December 1995. It is, however, an offence which involves an excessively wide variety of circumstances, calling for a range of penal and sometimes non-penal outcomes , with the consequence that it is difficult to obtain much by way of assistance from reference to the Judicial Commission statistics or from other cases: Elliott NSWCCA 14 February 1991 per Newman J, and Green (1999) NSWCCA 97. 28 Notwithstanding the caution which needs to be exercised in seeking guidance from other cases of manslaughter, reference to decisions similarly involving the killing by a parent or a carer of a young child, by an unlawful and dangerous act, is of some assistance. In this respect, I have had regard to the following cases: a) Vaughan (1991) 56 A Crim R 355, where the Court of Criminal Appeal, following a successful Crown appeal, increased a sentence imposed on a twenty-two year old man who had killed his five month old daughter by flinging her several times onto a couch, to one involving a minimum term of three and a half years, with an additional term of 18 months, observing that the substituted sentence was a "light one". b) Ditford NSWCCA 17 March 1992, where a minimum term of seven and a half years, with an additional term of two and a half years, was affirmed on appeal, although said to be at the top of the appropriate range, in the case of a twenty-nine year old prisoner who had killed the two and a half year old daughter of his de facto wife by punching her in the stomach and in the head. c) Dawney 1999 NSWSC, Barr J, 15 September 1999, where a sentence of eight years imprisonment with a non-parole period of five years was imposed in respect of a mother who had smothered her three year old child, being an offender who was suffering from depression, anger and a personality disorder, and who had experienced a violent and unhappy childhood as well as abuse while an adult. d) Howard (2000) NSWSC 876, Studdert J, where a sentence of seven years and six months, with a five year six months non-parole period, was imposed in respect of a twenty-six year old offender, who had killed the eight month old son of his de facto partner, by shaking him because he would not stop crying, and who had a history of an unstable family background and a lack of social or anger management skills.

e) Bilton (2000) NSWSC 1113, Bell J, where a sentence of seven years imprisonment with a non-parole period of four and a half years was imposed in respect of an offender who had killed a two year old child by punching him in the chest and shaking him vigorously and who was assessed as having a very low intelligence and as having shown great remorse.

f) Recalde (2000) NSWSC 1247, James J, where a sentence of nine years imprisonment, with a non-parole period of six years, was imposed in respect of a male aged twenty-three who had killed the six month old son of his de facto partner by throwing him, with considerable force, onto a kitchen bench after scalding himself with boiling water. 29 In each of Vaughan, Ditford, Dawney, Howard and Recalde there had been a plea of guilty and in Howard, Recalde and Bilton the court took into account the circumstance that the prisoner would serve the sentence under strict protection. 30 Of immediate relevance are the unequivocal statements in those decisions, particularly by Lee CJ at CL in Vaughan; of Hunt CJ at CL in Ditford; and of Studdert J in Howard concerning the special need for deterrent sentences in this type of case arising from the vulnerability of helpless infants and the dependency which they have upon their carers for their safety and well-being. While frustration and anger can easily arise in a parent or carer, in response to the crying or misconduct which is an entirely normal incident in the rearing of a child, that can never justify a reaction that involves any form of violent physical assault. In the prisoner's favour, in the assessment of his objective criminality, is his immaturity, his lack of experience and training in parenting, and the stressful situation in which he and Sarah found themselves. In combination, the potential for violence and inappropriate treatment of the child was very high. To a degree, this explains his criminality, although it does not excuse it, nor, as I will later explain, does it entitle the prisoner to attribute responsibility to persons or organisations other than himself. 31 In my assessment, his criminality for the event which brought about Jason's death remains very significant, and it is such that, taking into account the subjective circumstances to which I now turn, and the sentencing principles of relevance for young offenders, a custodial sentence is required which must be of a full time nature.

PRISONER'S SUBJECTIVE CIRCUMSTANCES 32 The prisoner was born on 3 August 1978, and had no prior convictions. He acknowledged a significant use of cannabis for a period, but claimed to have stopped using that substance before the date of the offence. He did drink alcohol but not, it would seem, to the point of it being a problem. Otherwise, I accept him to have been a person of prior good character. 33 The material placed before me upon sentence is somewhat contradictory in relation to the extent of aggression which he had displayed as an adolescent. What was not in issue was that his father had been somewhat violent towards his mother, and on occasions towards his children, and that he had left his wife when the prisoner was aged five years. 34 Thereafter, he had lived with his mother and stepfather for about five years until the latter also moved out. His mother, additionally, left the home when the prisoner was about fourteen or fifteen year old, leaving him and his brother behind. This appears to have occurred at his request following disagreements with her. 35 The prisoner, thereafter, left school at seventeen years of age in year 11. He met Sarah Eadie at about this time and formed a relationship with her, in the course of which she became pregnant. Each of them worked for Coles in the Newcastle region, but after she became pregnant, as I previously observed, they moved back to the home of her parents. 36 The second child of the prisoner, Jasmine, was born on 20 July 1999, that is, about two weeks after Jason's death, and was immediately placed into foster care. Although the prisoner hopes to reestablish contact with her, DOCS have made it clear that if Sarah was to have any contact with her daughter, she would have to terminate her relationship with the prisoner. Their relationship has now terminated, and it is very doubtful, by reason of the offence for which the prisoner is to be sentenced, that he will be able to establish any form of relationship with his daughter, at least before she attains her majority. 37 The prisoner's mother described her relationship with the prisoner as having been close, and one in which communication with each other was maintained even during his teenage years when, in her words, he experienced "some emotional problems". This is not the impression which the prisoner gave to Toni Single when she interviewed him. He presented to her as a person who was somewhat boastful of having behaved aggressively at school, and of having forced his stepfather and mother from the home, as a result of a campaign of deliberate intimidation and verbal abuse in the case of his mother, and of a physical assault in the case of his stepfather. The account which he is recorded as having provided to her was, to a degree, contradicted in the histories that he later gave to Dr Lucas, in which, although he agreed that he had placed pressure on his mother to leave home, he denied having had anything to do with the stepfather being forced out. 38 The Probation and Parole report was also not entirely favourable so far as its author, Tracey Scutt, gained the very clear impression that the prisoner appeared not to accept the extent of his criminal responsibility for the death of his son. Rather, he claimed to her to have been caught in a set of circumstances for which he was not responsible and which he could not control. He claimed, additionally, that his partner had been equally responsible by leaving their son unattended. 39 His less than enthusiastic response towards the counselling opportunities which had been offered to him during the pre-restoration process similarly indicated a somewhat stubborn refusal to recognise his own inadequacies. The lack of insight into his problems with anger management and into accepting responsibility for his actions, which were seen by Ms Scutt, were mirrored by the position which became evident in the ERISPs and in the intercepted conversations. In the course of these recordings, he can be seen to be significantly playing down the extent of the violence inflicted upon Jason, and to be trying to pass the blame for the death on to DOCS. It was also, to a degree, maintained in his evidence upon sentence before me, so far as he attributed responsibility for the frustration and anger which had built up in him to Sarah's parents for spoiling the child, for interfering in their relationship, and for not cooperating in the rules which he and Sarah had tried to establish for the management of the child. 40 I do, however, accept the assessment of the prisoner's mother and of his aunt that he has matured since the offence. I also accept his evidence that he is now more accepting of his criminality and of his inappropriate behaviour as a father of a young infant. From the evidence which he gave, and from the fact of his plea, some contrition and remorse have been demonstrated, although I am of the view that he still attributes a substantial degree of responsibility to DOCS, and to Sarah's parents, for what has occurred. Until he honestly acknowledges that it was his anger, and his act alone, that killed his son, and that there is a very serious degree of criminality involved in a father beating and killing a vulnerable child, he cannot claim to be truly remorseful or to have any real insight into what he has done. 41 While on bail, before appearing for trial, the prisoner obtained an apprenticeship as a landscape gardener, working with Griffith Landscapes Pty Ltd, a company owned by his aunt and uncle. Very favourable references have been provided by his aunt and by the Human Resources Manager and the Project Manager of this business. A position with the company remains open to him, and he intends to undertake further study in horticulture while serving the sentence of imprisonment which must be imposed for this offence. 42 He has used his time in custody since 26 March 2001 usefully, so far as he has commenced courses in creative writing, computing skills and music. 43 He has indicated in that due course he intends to undertake a course in anger management, an area which he obviously needs to address before rejoining the community. 44 These developments post arrest are favourable and present a reasonably optimistic picture for his future rehabilitation, dependent entirely on him accepting the need for him to control his anger. 45 A psychiatric assessment was provided by Dr Lucas. Again, in the interview with him, he tended to minimise his responsibility for the death of Jason and placed a good deal of blame on Sarah's parents for the stress which he had been experiencing, as well as some blame on her arising out of differences between them as to the way in which Jason was to be brought up. He did, however, acknowledge to a problem with anger control and also to a degree of remorse for what had occurred. 46 Dr Lucas found no sign of any psychiatric or personality disorder in the prisoner. He thought him to have had an unsettled background, to have inappropriately modelled his behaviour on a violent natural father, and to have lacked an effective male figure to whom he could relate during his upbringing. Although seemingly more mature and quieter, as a result of the events which see the prisoner where he now is, Dr Lucas thought him in need of counselling to control his anger, and to give him the life skills which his upbringing did not allow him to gain. After leaving prison, he expected that he would need a substantial period of supervision and support. He concluded: "If Mr Woodland makes full use of the opportunities available to him and accepts assistance when he leaves prison, the chances of his reoffending in this way will be considerably reduced. If he does form another relationship and wishes to father another child then support and supervision will be very important. I think he is likely to accept this, something he was reluctant to do during his relationship with Ms Eadie." 47 I accept the assessment of Dr Lucas as to the need for supervision and assistance post release. In conjunction with the prisoner's age, and the nature of the offence, which may result in his imprisonment being from time to time more difficult than usual, through the likely need for him to serve at least a portion of it on protection, I find that special circumstances are established justifying a departure from the statutory ratio between the overall term and the non-parole period. 48 In the prisoner's favour is his prior good character. For his plea of guilty, and for the remorse which I have noted, I propose to allow a discount of twenty percent in accordance with the guideline judgment in Thompson and Houlton (2000) 49 NSWLR 383. 49 He is also entitled to be sentenced by reference to the principles applicable to youthful first offenders whose offence is contributed to by their immaturity. In such case, dependent upon their age and extent of immaturity, the interests of rehabilitation do require careful attention and somewhat greater weight than might otherwise be the case: GDP NSWCCA 22 April 1991; Wilkie NSWCCA 2 July 1992; Kama (2000) NSWCCA 23; and Hearne (2001) NSWCCA 37. 50 Nevertheless, the sentence imposed must be one that is commensurate with the objective criminality involved: Dodd (1991) 57 A Crim R 349, and in the case of the manslaughter of a young child the element of deterrence remains of considerable importance, for the reasons previously mentioned. 51 Dale Mark Woodland, having taken these various matters into account, I sentence you for the manslaughter of your son to imprisonment for seven years and nine months, to commence from 26 March 2001, and to expire on 25 December 2008. I fix a non-parole period of four years and nine months also to date from 26 March 2001, and to expire on 25 December 2005. The earliest date on which you will be eligible for release on parole will be 26 December 2005. 52 In setting the sentence and the non-parole period, I have taken into account the earlier period of broken custody of eighty-seven days from 20 July 1999 to 14 October 1999, which I have rounded off to three months, and have reduced the head sentence and non-parole period accordingly. The non-parole period has also been reduced to allow for the special circumstances which I find to exist. 53 I observe that, with the benefit of hindsight, it would be very easy to criticise DOCS severely, upon the basis of the evidence led, for allowing Jason to be restored to his parents and for not monitoring the position closely enough post restoration. I am loathe, however, to make any positive findings to that effect without allowing DOCS, or the staff involved, the opportunity of being heard in reply. However, the case is one which would benefit from close analysis by DOCS for any possible system failures, since it has to be a matter of very serious concern that a child who has been removed from his parents' home with clear signs of shaken baby syndrome at five weeks, should be killed by one of his parents at age two, within six months of being restored to their care. 54 I direct that a copy of these remarks be sent to the Department for that purpose. 55 I will make a recommendation that the prisoner serve his sentence on protection for such period as may be assessed appropriate for his own safety.

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