Regina v Bilton

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Friday, 17 November, 2000 70097/00 - REGINA v Paul William BILTON

SENTENCE 1 HER HONOUR: On 5 September 2000 Paul William Bilton was arraigned before me on an indictment which charged him that on 23 February 1998 at Chinderah he did assault Corey Jessel then occasioning to him actual bodily harm and with the manslaughter of Corey Jessel on 25 February 1998. He entered a plea of guilty to the first count and one of not guilty to the count charging him with manslaughter. 2 The prisoner elected to be tried before me alone and the Crown consented to that course. On 11 September 2000 I returned a verdict of guilty of manslaughter and entered a conviction consequent upon that verdict. The matter was stood over to 3 November 2000 for sentence hearing. 3 At the time of the subject events the prisoner was living in the Chinderah Caravan Park. His girlfriend, Cheryl Jessel, was also a resident of the caravan park and lived in a van located across the road from his. The two had been on close terms for about 12 months. Ms Jessel was the mother of Corey. As at February 1998 Corey was just a little over two years old. Although the couple did not live together it was common for Cheryl and Corey to stay overnight in the prisoner's van. Over Corey's short life the prisoner had come to stand in the position of father to him. 4 At the time of his death Corey had two semicircular marks on the left side of his head. They are depicted in a number of the post mortem photographs which were tendered by the Crown in support of the count charging the prisoner with assault occasioning actual bodily harm. They are noticeable injuries consistent with having been caused by the same object. In the course of an interview conducted with police on 26 February 1998 the prisoner was asked about these marks. He said that two days prior to the child's death Corey and his mother had been in his, the prisoner's caravan. Cheryl Jessel left the two briefly and Corey started crying. The prisoner said he threw a tube of ointment at Corey twice. 5 The Crown does not accept, having regard to the appearance of the injuries, that they were caused by throwing the tube at the child. The Crown submits that it is inherently unlikely that had the tube been thrown the cap would on both occasions have come into contact with the child's forehead producing the appearance of these injuries. The Crown submitted that the injuries were consistent with a finding that the tube had been used as an instrument and not thrown at the child. If it be a circumstance of aggravation that the tube was used as an instrument, as distinct from being thrown at the child, I could only so find if I were satisfied of that fact beyond reasonable doubt. I am not so satisfied. In my view little turns on this aspect. I sentence the prisoner upon an acceptance of the account he gave the police in his interview, namely that on two occasions he threw the tube at the child. On each occasion it appears that the hard plastic cap of the tube came into contact with the child's forehead. Significant impressions in each case were left. Objectively the offence is a serious one made the more so because the prisoner twice threw the tube. 6 I turn now to the manslaughter of Corey Jessel. On 25 February 1998 the prisoner returned to the caravan park after a game of touch football. He was met by Cheryl and Corey at the entry to the park. Together they went to the prisoner's van where he gave Corey a piece of bread to eat. Corey started crying and the prisoner told Ms Jessel to take him back to their van. She did so putting Corey to bed. She patted him on the head for a little time and then left the bedroom section of the caravan and started watching television. Corey continued to cry. The prisoner walked over to Ms Jessel's van. He stood by the window located above the bedroom section of the van and called out to the child "Bloody hell, go to sleep". He then walked around and entered the van and made straight for the bedroom. 7 At the trial there was an issue concerning the events which took place immediately after the prisoner entered the bedroom. The account given by Cheryl Jessel differed to that offered by the prisoner in the course of his two electronically recorded interviews with police. As I explained in my reasons for judgment, while I considered Ms Jessel to be a generally consistent historian, in instances where her recollection differed from that of the prisoner, I approached the matter upon an acceptance of the prisoner's version. Consistent with that view I find that the prisoner walked straight over to Corey as he lay on the bed and punched him forcefully in the chest with his right fist. The blow caused Corey obvious and immediate distress. 8 The prisoner told the police that he had punched Corey because he would not stop whingeing. He said that he had not meant to hit the child as hard as he did, he had done so out of frustration. He said he left the van immediately after punching the child. He returned to his own van and then determined to go back and check if Corey was all right. This detail it seems to me was an indication of the prisoner's realisation of the severity of the blow. In the course of his first interview with Detective Hutchinson he was asked what had happened when the punch connected and he said: "He didn't believe it, that's when I walked out and I came back and I checked him and he was gasping for air." 9 On the prisoner's return to the van it appears that he shook Corey vigorously. He described this episode in a further interview with Detective Hutchinson conducted on 19 March 1998: "Corey was crying, I walked into his bedroom, punched him in the chest, standing up he was laying down, then I went back home, then I came back a couple of seconds later and I seen him there gasping for air and then I put him on my lap and shook him and his head was going around and around and then we took him out and put him on the lounge, on the lounge room floor. And then I went to a bloke's place to see if he had a phone to ring the ambulance."

10 Doctor Lawrence, who conducted the post mortem examination, was not able to assign a precise mechanism as to the cause of death. Both he and Doctor Duflou were of the view that the death was the result of non-accidental injury. The probable cause was cervical injury and in this context both Doctors Lawrence and Duflou considered shaking of the child's body to have been one likely mechanism of death. The matter is canvassed in considerable detail in my reasons for judgment. It was the Crown case that the shaking of Corey as described in the prisoner's second record of interview was a further deliberate assault upon the child. It was the prisoner's account that he had shaken the child in an effort to bring him around from the effect of the punch. He said that the child had been gasping for air and he appeared to be dazed. Although I consider the circumstances surrounding the shaking of Corey to be suspicious, I do not conclude beyond reasonable doubt that the shaking constituted a further deliberate assault by him. I consider it reasonably possible that the prisoner shook the child as part of a panic reaction to the realisation of the harm he had done by the punch and in a misguided attempt to revive him. In coming to this view I have regard to the evidence as to the prisoner's intellectual limitations to which I will make further reference in due course. 11 In the immediate aftermath of the prisoner's assault upon the child Cheryl Jessel made efforts to revive him. She told the prisoner to telephone the ambulance service. He did so. In the short interval between his realisation of the harm he had done to the child and his first contact with other occupants of the caravan park, he came up with a story that the child had fallen heavily on a plastic toy. He maintained this account when first speaking to the police. Subsequently, in the course of an electronically recorded interview which commenced at 1.25 am on the morning of 26 February he admitted to having punched the child. 12 The objective seriousness of this manslaughter by unlawful and dangerous act is considerable. Although the prisoner offered the explanation that he had punched the child out of frustration, the response was not a wholly spontaneous one in the context of a build up of domestic pressures. As I have noted although the prisoner stood in the role of father to Corey and had assumed some responsibility for his care he was not living with Ms Jessel. On this night he left his caravan and walked across the road abusing the child through the window before he entered the van and delivered the blow. 13 The prisoner's conduct this night is to be viewed in the light of the earlier offence. Just two days before he had let his temper and frustration with the child get the better of him when he assaulted Corey with the ointment tube. He was aware that he was susceptible to losing his temper with the child and to assaulting him. Again, having regard to the evidence as to the prisoner's level of intellectual functioning, I am inclined to give this consideration somewhat less weight than might otherwise be appropriate. 14 The prisoner is aged thirty two. He has a record of convictions disclosing two matters as a juvenile (neither of which involved violence) and some driving offences as an adult. I do not consider these relevant in the context of the present offences. 15 The prisoner gave short evidence before me on 3 November 2000. He said that following his conviction he had been held at the Grafton Prison and subsequently at Cessnock. He was confined in conditions of "non-association". This classification means that he is kept in his cell and not permitted to associate with other prisoners at all. He has received threats from other prisoners. After he was charged with the offence prior to his release on bail, he said that he had been threatened by a prisoner who grabbed hold of him and pushed him against the wall telling him that he was going to do to the prisoner what the prisoner had done to the child. 16 A report dated 1 November 2000 prepared by Anna Robilliard, psychologist was tendered on the prisoner's behalf. A detailed history is set out therein. The prisoner spent the first twelve months of his life at the Royal Alexandria Children's Hospital as a ward of the state. Thereafter he was fostered by the Bilton family, who ultimately adopted him. His parents separated when he was about eight years old. He and his siblings lived with their mother. He continued to have regular contact with his father. After a few years his mother formed a relationship with a man named Reg. The prisoner did not like Reg because he was a drinker prone to violent behaviour. The prisoner's older siblings left home at the earliest opportunity. He moved to Taree with his mother and Reg whilst he was in his early years at high school. He left school in Year 8 and helped Reg in a lawn mowing business. 17 When he was aged about seventeen the prisoner and his mother left Reg and moved to Sydney where they lived with his sister and her husband. The prisoner's mother died when he was aged about twenty. He remembered her as a warm and loving mother. He appears to have also maintained a good relationship with his father. 18 The prisoner reported happy memories of his primary school days. When he entered high school he was placed in a special education group designed for students with learning difficulties. He truanted on a number of occasions in part because he was unhappy due to the difficulties he was having at home with Reg. He said he had not been expelled from high school but that the school had suggested it would be appropriate for him to leave as he was not making progress. 19 After the prisoner moved to Sydney he obtained employment with a firm called Artarmon Radiators for about twelve months. Ultimately he lost the job and was unable to recall why. Thereafter he was out of work for two or three years. Subsequently he had lived in Port Macquarie and in the Tweed Heads area where he had obtained work on occasions. For a few months prior to the commission of the offences he had been working for a company making marble products. This was a training position and he was earning $300 per week. 20 Ms Robilliard conducted standard intelligence and personality tests on the prisoner during the course of her consultation with him on 31 October 2000. In preparing her report she had access to the results of testing carried out on the prisoner in October 1994. It appears that these tests had been conducted to assess his educability and vocational options. Ms Robilliard reported that the prisoner's composite score on the Kaufman Brief Intelligence Test placed him within the percentile rank of two. Ninety eight percent of the population would score equal to or ahead of the prisoner on that test. The 1994 testing found the prisoner's verbal skills and comprehension to be poor, on the more practical and "hands on" tasks in the performance section of the tests his score was considerably stronger. Overall he still fell within the borderline range in the bottom ten percent of the population. Doctor Laurel Morris who assessed him in 1994 considered the test results indicated "a lack of alertness to the environment and poor long-term memory for facts". 21 Generally, Ms Robilliard observes: "Individuals falling within the borderline range and below are not able to readily generate alternative solutions to problem situations and their reasoning abilities are typically slow, concrete and based on past personal experiences."

22 Ms Robilliard expresses the opinion that the prisoner's test results on the Carlson Psychological Survey do not evidence an antisocial disposition. I am prepared to accept that view. I consider it receives some support in the light of the circumstance that the prisoner's record discloses no offences of violence or the like. 23 Ms Robilliard states that the prisoner expressed deep regret over his violent behaviour towards Corey. She says that he has limited insight consistent with his measured level of cognitive ability. She states that the prisoner still thinks about "What I've done and why I did" on a daily basis. He reports that he has frequent dreams about Corey and Cheryl walking out of a shop and greeting him. On other occasions he has nightmares about the child's death. He reports difficulty in sleeping. 24 The prisoner did not in the course of his evidence before me express remorse with respect to the child's death. His evidence was confined to the circumstances of his present custody. Bearing in mind his limitations, which to my mind were apparent in the course of his short evidence, I attach no significance to this circumstance. I accept that he is remorseful for his conduct. 25 The prisoner has maintained a close relationship with his brother, Terry, and his sister Carol. Both continue to be supportive of him. Overall I consider that has good prospects of rehabilitation. However, it is to be expected that he will require considerable assistance when he is released from custody having regard to the length of the non-parole period which I must impose and in the light of his limited skills. 26 I take into account that the sentence which I impose will be served in conditions of strict protection. The conditions described by the prisoner in his evidence are particularly rigorous involving as they do that he has no association with other prisoners. He told Ms Robilliard that he does not wish to fight and would prefer to be locked in his cell twenty-four hours a day. She considers, and I accept, that it is likely that he will request strict protection and that he will be held in those conditions throughout his sentence. It is appropriate that I make some adjustment to reflect those conditions of custody. 27 In relation to the assault occasioning actual bodily harm, the prisoner pleaded guilty and I take that into account. I propose reflecting the totality of the prisoner's criminality in the sentence I impose in respect of the manslaughter of Corey. The sentence with respect to the assault occasioning actual bodily harm will be served concurrently. 28 In the course of submissions I was referred to the decision in R v Ditford (unreported) NSWCCA 17 March 1992. I consider that to be a case more objectively serious than the present. The prisoner in that case struck the child a second blow and fled from the home without seeking medical attention for her. In this case I am not persuaded that the prisoner sought assistance for Corey on his own initiative. On this matter I accept Ms Jessel when she says she told the prisoner to ring for the ambulance service. The fact remains that he did so and that he waited with Ms Jessel and the child until the police and ambulance service arrived. 29 In Ditford the sentence imposed was one of 10 years with a minimum term of 7 years and 6 months (the prisoner had served a further 5 months by way of pre-sentence custody). The prisoner appealed against the severity of that sentence. His appeal was dismissed. Hunt CJ at CL (with whose judgment the other members of the court agreed) noted of that sentence that "It was within the Judge's sentencing discretion - if at the top of the appropriate range". 30 The prisoner in Ditford pleaded guilty albeit not at the first opportunity. The sentencing judge made a number of favourable findings with respect to his subjective circumstances. I note that there was no suggestion in Ditford that the prisoner suffered any intellectual limitation. 31 It is recognised in sentencing for offences of this character that the vulnerability of infants calls for the imposition of a sentence reflecting the need both for denunciation and deterrence; Ditford; R v Vaughan (1991) 56 A Crim R 355. On occasions it will be appropriate to moderate these latter considerations to take into account a prisoner's significant mental handicap; R v Champion (1992) 64 A Crim R 244. There was a discussion of this principle in the context of the manslaughter of infants in R v Richards & Gregory [1998] 2 VR 1 at 10. Although I note that the court was there concerned with manslaughter by criminal negligence which gives rise to rather different considerations in this context. 32 The prisoner is assessed as falling within the borderline range of intellectual ability. His degree of handicap is not as marked as the appellants in either Champion or in Richards. As I have noted the principle in Champion was expressed by reference to evidence of "significant mental handicap". Considerations of degree always arise in such cases. I accept the prisoner has limitations in terms of his level of intellectual functioning. I consider this operates both to reduce his culpability for his offending and that it means that I should moderate to some degree the need for the sentence to reflect considerations of denunciation and general deterrence. I am not of the view that the extent of the prisoner's handicap is such as to require that these latter considerations be discounted to a significant degree in the determination of the overall sentence. 33 In the light of the evidence as to the prisoner's level of functioning and my finding that it is likely he will spend the whole of his sentence in conditions of strict protection I am of the opinion that special circumstances exist within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. I propose to specify a non-parole period of less than three-quarters of the term of the sentence which I impose. 34 I was informed by the Crown that the prisoner was in custody between his arrest on 26 February 1998 and his release on bail on 19 May 1998. I remanded him in custody following his conviction on 11 September 2000. Section 47(2)(a) of the Act allows a Court to direct that a sentence of imprisonment be taken to have commenced on a day occurring before the day on which the sentence is imposed. In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment and in deciding the day on which the sentence is taken to have commenced the Court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. 35 I was informed by the Crown that a sentence expressed to commence on 20 June 2000 would allow the prisoner full credit for the time already served in custody referable to the commission of the subject offences. I propose to direct that the sentences which I now impose take effect from that date. 36 Paul William Bilton in relation to your conviction for the manslaughter of Corey Jessel I sentence you to a term of 7 years imprisonment to date from 20 June 2000. I specify a non-parole period of 4 years and 6 months. The first date on which you will be eligible to be released on parole is 19 December 2004. 37 In respect of your conviction for the assault occasioning actual bodily harm to Corey Jessel I sentence you to 6 months imprisonment. That sentence will commence on 20 June 2000. **********

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