Regina v Dalton

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

R v Ditford, unrep. 17/3/92 per Hunt CJ at CL R v Fernando (1992) 76 A Crim R 58 CASES CITED: R v Howard [2001] NSWCCA 309 R v Morgan (2003) 57 NSWLR 533 R v Newman, R v Simpson [2004] NSWCCA 102

(C) S Kavanagh SOLICITORS: (R) S O'Connor

IN THE COURT OF CRIMINAL APPEAL 2004/1876 SANTOW JA HISLOP J SMART AJ

SMART AJ: The Director of Public Prosecutions appeals against a sentence of 7 years imprisonment with a non-parole period of 3 years 3 months imposed upon the offender on a charge of manslaughter of the male child of his de facto to which he had pleaded guilty. The agreed basis of the plea was that the offender caused the child's death by an unlawful and dangerous act. The Director contends that the sentence is manifestly inadequate.

In January 2002 the offender, then aged 18, and AK, then aged 17, were living together in a flat at Casino in a de facto relationship with AK's two children, a male child born 23 January 2000 and almost two years of age, and a female baby born on 26 November 2001. The male child's natural father was serving a prison sentence in Queensland.

The mother and the offender both lied to the police when they were interviewed on 17 January 2002, the day of the infliction of the fatal injuries and the day of the admission of the child to hospital. Eventually, on 22 July 2003, the mother told the police in detail of the events immediately leading up to the ultimately fatal injury to the child. The mother was in the laundry and heard the child screaming. She ran into his bedroom: "I ran in there and saw DJ [the offender] had him up on the window sill holding him by the shoulders. DJ wanted him to jump and he would let go of him. DJ said, 'I want him to jump.' I said, 'Can't you see he's scared, he's shaking.' [The child] started screaming louder and DJH grabbed his head and just pushed it into the window, just the once, he pushed him backwards into the window. I went over to grab [the child] but DJ pushed me away. When he pushed [the child's] head into the window he used two hands, he grabbed him over the ears and just thrust his head back against the window, it was just too quick. It was loud but the window didn't smash or crack. He then took him off and chucked him on the mattress. It was a forceful chuck. He chucked him on his back and his head was on the edge."

The child lost consciousness immediately after that.

The child was admitted to Casino Hospital just after 3.30pm on 17 January 2002. He was still unconscious. The admitting doctor concluded that the child had been "violently assaulted and was probably going to die from his brain stem injury". The child was transferred to Lismore Base Hospital where Dr C Gavaghan, the Director of Accident and Emergency, noted bruising on the right side of the child's face in the form of three circular bruises in a row between the right eye and the mouth which were black in colour and measured under two centimetres each. There was evidence of retinal haemorrhages in both eyes and haemorrhages behind the left and right tympanic membranes of the ears, symptomatic of accelerative brain injury. There were a number of other small older bruises over the chest wall. The child had significant bleeding in his brain. A skeletal survey revealed multiple arm fractures of different ages in the left arm and an old fracture in the right arm. There was a clearly visible fracture of the left wrist. Dr Gavaghan thought that "the child was most likely subjected to continuous abuse over a prolonged period of time and this is evidenced in his skeletal survey and his general nutritional state."

The child was placed on life support in the Intensive Care Unit. He died about 10.50am on 18 January 2002.

The post mortem examination disclosed bruises over the child's body, especially the face, chest, right forearm and right thigh, head injuries, spinal injuries and fractures of different ages. He concluded that the injuries were indicative of non-accidental injury and that the cause of death was head and possibly spinal injuries.

Dr Kieran Moran, the Director of the Child Protection Unit, Sydney Children's Hospital, was consulted by police and reported:

"The child died as a result of abusive head trauma and that he had been severely abused prior to the fatal incident. It is likely that he suffered a variety of severe impacts to the head during the fatal assault."

In his evidence in the committal proceedings on 14 February 2003 Dr Moran stated that the fatal injury could have occurred as a result of an extremely severe acceleration against a soft surface such as a mattress which included a whip-lashing movement to the head. He agreed that a male taking hold of a child and throwing it with great force and power onto a mattress on the floor could have caused the fatal injury. 12. There is a considerable body of evidence that prior to 17 January 2002 the offender smacked the child excessively, dragged the child by the arm, lifted him by one arm and smacked him, hit him on the head with an open hand, on some occasions causing him to fall heavily on the ground and force-fed the child by taking hold of his mouth and forcing him to chew. The offender was not charged with any of these acts. Before the offender, the mother and the child moved into their flat he was spoken to by his mother and sister and others about his treatment of the child.

The mother of the child said that the offender became more violent towards the child after they moved into their flat. She said that one way or the other the offender was violent towards the child every day. He threatened her that if she told DOCS about what was happening they would take the child away from her and she was scared this might happen. They would often argue. The situation became worse and despite her pregnant condition, the offender started to push the mother when she went to pick up the child, though mainly he just threatened her.

The judge expressly reminded himself that the offender was to be sentenced for manslaughter alone and that he had not been charged with any of the other acts mentioned. The judge held that the relevance of these other acts was to demonstrate that the violence of 17 January 2002 was not isolated, it was not accidental and it was not momentary. It was the culmination of continued physical abuse.

The offender in his evidence, expressed his sorrow for what had happened but the judge very much doubted that this was deeply felt. The judge wondered whether his impression reflected the offender's difficulty with expressing emotion other than anger.

Dr Brendan Lloyd, psychologist, interviewed the offender for 1 hour 37 minutes at Grafton Gaol. He also read the facts prepared for the Court and the mother's statement of 22 July 2002. The offender verified the history which he gave Dr Lloyd.

The offender described himself as having a "short fuse" and easily aroused into anger. He said that he found it hard to calm down once he is aroused into anger.

The offender experienced a disadvantaged and disruptive childhood. His natural father beat him with jug cords and fan belts. His mother was the victim of violent domestic abuse at the hands of his father. The family moved around a lot. His mother provided food and comfort for the children and cared for them. His father drank a lot and was frequently absent. His mother left his father when the offender was about five. When the offender was about eight, his mother met a man who was called "Steve" and lived with him. The offender said that Steve was kind to him, but it seems that there was inadequate discipline in the home. The offender's early teens were a mixture of trouble and attempts to participate in life generally.

The offender was much affected by the death of his elder brother, Colin, after his release from Grafton Gaol in what the offender believed were suspicious circumstances and the deaths of a substantial number of other relatives.

The offender described his mid to late teens as a time largely dedicated to marijuana and alcohol. From the time he left school around 16 to the time of his arrest on 10 September 2002, he fell into a pattern of daily use.

Dr Lloyd recorded that the offender had a history of self-harming. In response to racial vilification, especially at school, towards himself and his sisters he was prone to run into walls with the deliberate intention of causing harm to himself. Now he is prone to punching brick walls, including those in gaol. The offender complains of arthritis in his hands as a consequence.

Dr Lloyd reported that the offender was "on protection" in gaol due to the danger he faces from other prisoners. This has resulted in less opportunities for exercise and education.

Dr Lloyd thought that the offender possessed a little higher than average intelligence. A more detailed psychometric assessment was needed to reveal the full extent of his capabilities.

Dr Lloyd diagnosed the offender as suffering from a Borderline Personality Disorder. This is difficult to manage and requires prolonged and highly skilled treatment with at least 12 months of weekly contact. Dr Lloyd described in detail what is involved in such treatment. It is not always successful. Dr Lloyd believed, "a mandated treatment program has a strong potential for helping Mr Dalton back into the world at large".

Dr Lloyd wrote that if there was progress during the period of intense treatment of 12 months, the frequency of the sessions could be reduced. He concluded, "I would estimate that four years to follow up would be a minimum. I would hope this would translate into four years of psychotherapy and support to make a personality change in Dennis."

Dr Lloyd sounds this unsettling note of warning: "Without a therapeutic intervention, should Dennis find himself in a similar situation in the future, it is likely that within a year the pattern of abuse will be back. He might learn from this current experience and the harm he could inflict in the future may not be as lethal, but it will be nonetheless damaging physically and psychologically." 27. The judge referred to the "undoubted immaturity" of the applicant, a fact which the judge was able to assess from hearing and seeing the offender give evidence. This advantage was also important in his forming the view "that the offender did not realise the serious potential for grave injury that his actions caused".

The judge said: "It is important in the context of this case to give weight to the fact that the offender is Aboriginal and hence part of a marginalised community which, in his case, I think has contributed significantly to his own feelings of inadequacy and self-hatred to which Dr Lloyd has referred: see R v Fernando (1992) 76 A Crim R 58."

The judge regarded the relative youth of the offender as "a most significant factor" and pointed to the "great importance of rehabilitation in this particular case." He held that "objectively, the offence was a very serious one" and that the offender "was well aware that his actions were criminal assaults, quite capable of causing painful injuries, to which he was apparently angrily indifferent." The judge added, "I think he still feels that the child's death at his hands was accidental; this might merely be a mark of the offender's relative immaturity".

The judge concluded: "I have reluctantly concluded that the circumstances of the offender's crime are so serious that I am bound to impose a term of imprisonment which will result in the offender serving some more time in prison. Though unexpected, a small child was killed by the offender's act of deliberate cruelty, an act which he knew to be wrong and of a kind which he had been told on many occasions he should not commit."

The judge held that the relative youth of the offender and his psychological dysfunction must qualify the application of the element of general deterrence.

The judge stated: "…the offender has been in custody since 10 September 2002. He has spent most of that time in special protection and will continue to do so. Moreover, the conditions of imprisonment whilst on remand are significantly more harsh than ordinary imprisonment, so that merely to backdate the sentence is an inadequate adjustment. This is an important factor which requires an allowance to be made in the term still to be served. There are, as is obvious, special circumstances that justify a departure from the statutory calculus in s44 of the Crimes (Sentencing Procedure) Act 1999 , primarily to enable a lengthy period of supervision and support after the offender's release. I have taken into account the offender's expression of contrition in addition to the utilitarian discount."

The judge granted a discount in the order of 10 per cent for the plea of guilty which came on the verge of the commencement of the offender's trial. The judge held that the utilitarian value of the plea was not great and that in addition to avoiding the expense of a trial its main virtue was that it avoided the mother having to give evidence.

The judge was faced with a difficult sentencing exercise in a tragic case.

The Crown's principal ground of appeal was that on the facts of this case the sentence was so inadequate as itself to bespeak error. The Crown further submitted that there were identifiable errors and I shall deal with each of these alleged errors.

(a) His Honour erred in treating the mens rea requited for manslaughter by unlawful and dangerous act as a mitigating feature of the case.

I doubt if this formulation of the ground accurately reflected the Crown's contentions. The Crown submitted that the judge (i) regarded the lack of an intention to kill or commit grievous bodily harm (the mens rea for murder) as a matter lessening the objective seriousness of the offence of manslaughter in this case; (ii) qualified his assessment of the objective seriousness by reason of this fact and said he was reluctant to impose a term of imprisonment. 37. Manslaughter by an unlawful dangerous act does not require an intention to kill or commit grievous bodily harm. What is required is proof of an intention to commit the unlawful and dangerous act and proof that a reasonable person in the position of the accused would have realised that he was exposing the victim to an appreciable risk of serious injury.

The Crown contended that the judge erred in treating the offender's belief that the death was accidental as a mitigating feature and in the weight he gave to this factor. The Crown relied on the offender having been warned on at least one occasion of the risk of such injury to the child by reason of one of his assaults.

On a fair reading of the judge's remarks none of these complaints is justified. The judge at no stage said expressly or by implication that the lack of an intention to kill or commit grievous bodily harm lessened the objective seriousness of the manslaughter. The judge specifically acknowledged the seriousness of the offence.

The judge's comment that, though unexpected, a small child was killed by the offender's act of deliberate cruelty, an act which he knew to be wrong and of a kind he had been told on many occasions he should not commit reflected the factual position. By "unexpected" the judge means unexpected by the offender. It is an impermissible jump to say that the judge, by the use of the words "though unexpected" was lessening the seriousness of the offence. Nor do I accept that the judge in referring to the offender's belief that the death was accidental treated that as a mitigating feature. In the context the judge was pointing out that the applicant did not realise the serious potential of his acts and therefore regarded what happened as accidental. In making this remark the judge probably also had in mind Dr Lloyd's report and the difficult task of rehabilitation which lay ahead.

The Crown's submissions read too much into the judge's remarks. These submissions should be rejected.

(b) His Honour Failed to Impose a Sentence That Reflected the Objective Seriousness of the offence.

This complaint is essentially one of manifest inadequacy and is better dealt with under the principal ground.

The Crown contended that the judge misapplied the principles enunciated in R v Fernando (1992) 76 A Crim R 58 in that the judge had treated the offender's aboriginality as requiring mitigation of the sentence with proof of nothing further relating his race to the commission of the offence.

The judge was not relying solely on the offender's Aboriginality. He was relying on the offender's Aboriginality, the race vilification he experienced at school and the effect that that had had upon the offender as detailed by Dr Lloyd. That vilification followed on the childhood experiences of the offender briefly summarised earlier. In combination these factors had led, at least in part, to Borderline Personality Disorder.

Dr Lloyd was relying on principles formulated by Dr Linehan in his published works, Skills Training for Treating Borderline Personality Disorder and Cognitive Behavioural Treatment of Borderline Personality Disorder, the Guildford Press New York. Dr Lloyd applied those principles to this case when he wrote: "Deemed self invalidation. Dennis' early childhood experiences were fragmented invalidating and dangerous. All through his childhood he experienced racial vilification at school."

Dr Lloyd expressed the view that the conduct of the offender towards the child, namely, the months of physical harm, with the harm becoming lethal for the child, "describes a set pattern of behaviour that contributes to describing Dennis' personality". Dr Lloyd saw the racial vilification as playing a part in the onset of the Borderline Personality Disorder.

The judge did not deal with the matter in the detail set out earlier in these reasons, but his reference to the offender's aboriginality and Dr Lloyd's assessment encompassed that.

This is not a case of the misapplication of the Fernando principles as further explained in R v Morgan (2003) 57 NSWLR 533 and R v Newman, R v Simpson [2004] NSWCCA 102, but a development of them to meet a different factual situation. This complaint should be rejected. (d) Failure to Take Into Account As An Aggravating Feature That the Offender was on a Good Behaviour Bond at the Time of the Commission of the Offence.

49 .The Crown accepted that the offender was not on a bond at the time the offence was committed. This complaint fails.

(e) His Honour failed to fix a non-parole period that adequately reflected the seriousness of the offence.

The Crown pointed out that the adjustment for special circumstances involved a reduction in the non-parole period from the standard ratio of 75 per cent to 46.4 per cent of the total sentence. The Crown submitted that by so varying the statutory proportions the judge has compounded the undue leniency of the head sentence by arriving at a wholly inadequate non-parole period that does not reflect the seriousness of the offence. The Crown submitted that there had been double counting for matters already taken into account in reducing the head sentence and therefore reflected in the standard non-parole period.

The Crown complained that the judge referred to the "obvious" special circumstances without identifying anything other than the desire for a lengthy period of post release supervision. The Crown conceded that the judge had earlier referred to the youth of the offender as requiring both amelioration of the sentence and a structure that would encourage rehabilitation. The Crown contended that the standard statutory ratio would have provided an adequate period of post release supervision on parole and that the non-parole period fixed did not adequately give expression to the need for general and specific deterrence.

The Crown submissions overlook the terms of Dr Lloyd's report which the judge accepted. Dr Lloyd envisaged intensive treatment for one year and treatment extending over a further four years. The intensive and highly skilled and specialised treatment Dr Lloyd regarded as necessary may well not be available in gaol. If that is so and Dr Lloyd is correct as to the level of treatment needed, not a great deal of rehabilitation may take place in gaol. It would be surprising if the offender was able to afford the level of treatment deemed necessary by Dr Lloyd. I am not aware whether that treatment could be otherwise funded. These questions were not raised at the sentencing hearing. The prospect of the offender not receiving the treatment he needs is disturbing. Dr Lloyd's report, if substantially accepted, warranted a major extension of the period on parole and a corresponding reduction in the non-parole period.

The ultimate question of whether the judge failed to fix a non-parole period that adequately reflected the seriousness of the offence is better dealt with under the general ground that the sentence was manifestly inadequate.

(f) His Honour gave too much weight to the subjective circumstances of the offender.

It is a fundamental rule that a sentencing judge should not permit the subjective features of a particular offender to overshadow the seriousness of the offence. The Crown complained that the judge placed too much weight on the offender's youth and immaturity and failed to appreciate sufficiently that the offender was living as an adult in a de facto relationship and was in a position of trust in respect of a small child.

It was pointed out that the offender fled following the offence, and initially lied to police about his involvement. The Crown submitted that there was little by way of contrition to ameliorate the sentence, that the conduct culminating in the offence was deliberate and sustained, despite warnings from others.

These are also matters better dealt with under the general ground that the sentence was manifestly inadequate.

(g) His Honour failed to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999 in that he failed to firstly set out the full term of the sentence, and secondly to set a non-parole period.

The Crown submitted that the judge had sentenced the offender in accordance with s 44 of that Act as it stood at the date of sentencing, whereas in that form s 44 applied to offences committed on and after 1 February 2003. The current form of s 44 was introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. The Crown contended that the offender should have been sentenced in accordance with s 44 as enacted in the Crimes (Sentencing Procedure) Act 1999. Under the legislation the offender fell to be sentenced under s 44 as enacted in 1999, the offence being committed in January 2002.

Under s 44 as enacted in 1999 the Court is required to set the term of the sentence and secondly to set a non-parole period for the sentence (the minimum period for which the offender must be kept in detention). Under the amended s 44 the Court is first required to set a non-parole period for the sentence (the minimum period for which the offender must be kept in detention) and the balance of the term must not exceed one-third of the non-parole period. In each instance the Court is empowered to vary the ratio if there are special circumstances.

Adams J said: "Dennis Dalton, you are sentenced to serve a minimum term of imprisonment of three years and three months from 10 September 2002 so that you will be eligible to be released on parole on 9 December 2005. The balance of the term of seven years imprisonment will expire on 9 September 2009 …"

It does not follow that, because the judge in his formal sentence announced the minimum term first followed in the next sentence by the length of the full term of the sentence, he did not firstly set the term of the sentence. The use by the judge of the phrase "minimum term" rather than "non-parole period" was a slip and reflects the words in parenthesis in the legislation.

This is not a point that has any practical importance. The minimum period that the offender has to spend in gaol has been specified as have the first date on which he is eligible for release on parole and the length of the full term of the sentence.

This point is one of form and would not of itself lead to any alteration of substance to the sentence.

The Principal Ground of Appeal - Manifest Inadequacy.

The protection of children is of fundamental importance to society (R v Howard [2001] NSWCCA 309 at [18] per Wood CJ at CL. In crimes against young children heavy sentences reflecting the need for severe punishment are required: R v Ditford, unrep 17 March 1992 per Hunt CJ at CL. The law attaches great importance to the sanctity of human life. The Crown correctly contended that the sentence imposed does not reflect any of these long-established principles.

The Crown submitted that on any test of objective seriousness this offence was in the most serious category of manslaughter as it involved sustained and gratuitous cruelty to the child. This was not a case of momentary loss of control or error of judgment.

It was also pointed out that the non-parole period must itself appropriately reflect the criminality involved in the offence.

The youth and immaturity of the offender are matters of importance as was his borderline personality disorder which was at least in part contributed to by his disrupted and disadvantaged childhood and the racial vilification endured. The offender was of not less than average intelligence. He had been warned against ill-treating this young child. Even as an immature 18 year old he was aware that his conduct was capable of severely injuring the young child, especially on the morning of 17 January 2002. Any reasonable person would have realised this. His actions were deliberate and the child was not in a position where he could effectively resist the offender's actions.

The offender had a strong subjective case but his criminality was grave.

Both the full sentence and the non-parole period (or minimum term) were manifestly inadequate. There is no sufficient reason why this Court should not re-sentence. I have not overlooked that the offender was sentenced in April 2004 and is due to be released in December 2005. This was a very grave crime.

The offender is entitled to the discount in the order of 10 per cent allowed by the judge. His powerful subjective features must be and are taken into account. Any re-sentencing must be approached with the restraint which is appropriate to Crown Appeals.

It is also important to take into account that the applicant has served and will serve his sentence on strict protection. This is more arduous. Further, the applicant's affidavit of 20 September 2004 points out the limited education facilities which are available in practice and the limited activities and amenities actually available. The offender has found it hard to get a job in strict protection. He tells of a memory loss he has suffered and the consequent trouble he has had with reading, writing and spelling. He has not seen the psychologist. It is not stated why this has occurred. The offender may need help to enlist the psychologist's services. He probably needs specialist psychological services.

There are special circumstances. The offender is going to need skilled and extended treatment as outlined by Dr Lloyd and he will need support and supervision. I doubt if treatment of the length, regularity and quality required will be available in gaol. Rehabilitation will be long and difficult but essential for the community if the offender is to overcome or cope with his borderline personality disorder.

This Court should proceed under the original form of s 44 of the Crimes (Sentencing Procedures) Act when re-sentencing as the offence occurred prior to 1 February 2003.

The offender should be sentenced to a full term of imprisonment of 9 years with a non-parole period of 4 years 6 months.

I propose the following orders: 1. Crown appeal against sentence allowed.

2. In lieu of the sentence imposed the offender (Dennis James Dalton) is sentenced to imprisonment for 9 years commencing on 10 September 2002 with a non-parole period of 4 years 6 months expiring on 9 March 2007 on which day the applicant will become eligible for release on parole, which should be under the supervision and control of the Adult Probation Service.

3. Direct that a copy of Dr Lloyd's report accompany the warrant to the Corrective Service Authorities. **********

26/04/2005 - Judge's name omitted - Paragraph(s) 3 27/04/2005 - Cover sheet - "Regina" not "Reginas"; Smart AJ at 3. - Paragraph(s) Cover sheet only

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