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."