Regina v Hill

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 1 June 2001 the offender, Paul Geoffrey Hill, was arraigned on a charge that he, together with his co-accused Leanne Charmaine Eriksson, on 27 April 2000 at Westmead murdered the deceased, Tristen Michael Allen Lane, to whom I shall refer as Tristen. To this charge pleas of not guilty were entered by both accused. 2 On 20 August the offender, Leanne Eriksson, pleaded guilty to the manslaughter of Tristen, who was her son. The basis of the plea was manslaughter by criminal negligence in failing to obtain medical treatment for Tristen who had suffered injury and in failing to remove Tristen from the danger of injury by separating from her co-accused, Paul Hill, with whom she was in a defacto relationship. 3 At the time of entering her guilty plea, the offender Leanne Eriksson undertook to give evidence against the offender Paul Hill. She was sentenced on 7 September 2001 with the proposed assistance to authorities being taken into account. 4 On 1 September 2001 the offender Paul Hill pleaded not guilty to murder but guilty to manslaughter. This plea was accepted by the Crown in full satisfaction and discharge of the indictment. 5 The Crown case against the offender on sentence, proceeds on two bases: firstly that his acts caused the death of Tristen and that those acts were both unlawful and dangerous; secondly that he was guilty of criminal negligence in his failure to obtain necessary medical assistance and treatment. 6 It is contended on behalf of the offender that Tristen, a two year old child, suffered a number of non-accidental injuries ultimately leading to his death. There is also no issue that failure on the part of the offender to obtain necessary medical assistance and treatment amounts to criminal negligence. 7 The issues for determination on sentence include whether a number of assaults alleged to be by the offender upon Tristen caused a "constellation of injuries" including that which subsequently caused his death, and whether such alleged injuries, were in the circumstances, aggravating features relevant to sentence. Both those issues require proof beyond reasonable doubt. 8 It is common ground that the injuries sustained by Tristen must have been occasioned by the deliberate act of either Paul Hill or Leanne Eriksson. 9 The background events leading to the death of Tristen include the following: 10 The deceased, Tristen Michael Allen Lane, was born to Leanne Eriksson and Michael Allen Lane at King George V Hospital, Sydney on 1 March 1998. 11 He was two years and two months old at time of death. A few months after Tristen's birth, the relationship between Leanne Eriksson and Michael Lane ended and they separated. At that time they also had another child, Joshua, born 29 August 1995. 12 Following separation from Michael Lane, Leanne Eriksson maintained custody of the two children residing with them at various addresses, including the home of her grandparents at Blue Haven on the Central Coast. 13 In February 2000 when the offender and her two children were residing at a guest house at 101 Queen Street, Ashfield, a relationship developed between Leanne Eriksson and the offender, who at that time, resided with his sister, Amanda Hill, in a large block of residential units at Golden Grove Street, Darlington. 14 At about that time, Michael Lane took custody of the child Joshua. The offender moved into room 19, 101 Queen Street, Ashfield where he resided with Leanne Eriksson and Tristen. A number of residents of those premises, a boarding house, from time to time overheard abusive language used by the offender towards Tristen and heard noises consistent with the child being slapped, followed by Tristen crying. 15 In the period from approximately the end of March until 13 April 2000 Leanne Eriksson and her son Tristen lived with the offender at his father's home in Mount Druitt. On 14 April, the offender, Leanne Eriksson and Tristen moved in with the offender's sister, Amanda Hill to unit 50/11 Golden Grove Street, Darlington. 16 In this large complex of residential units also resided Leanne Eriksson's half-sisters, Shonna and Julia Parker, and their close friend Kylie Quinn. 17 Other close friends were Susie Tavares and Dominic Natoli. 18 Comprehensive statements, which form part of Exhibit "A" on sentence, have been furnished by these young people, who plainly took a close interest in Tristen. 19 What is said by them and by other persons, who have made statements to investigating police, satisfies me to the relevant degree that, following commencement of the relationship between Leanne Eriksson and the offender, Tristen was subjected to rough handling and physical abuse by the offender which was evident in bruising and abrasions observed by Shonna and Julie Parker and in particular Susie Tavares and Kylie Quinn. 20 The rough and inappropriate handling of Tristen by the offender including the dropping and throwing of him from height onto a bed in the face of strong objection and adverse reaction by the child. 21 The offender exhibited dislike of Tristen which was obvious to others, as was also Tristen's fear of the offender. 22 I am further satisfied that although Leanne Eriksson was from time to time less than diligent in her supervision and motherly care for Tristen, she was not violent towards him and was not responsible for physical injury to him. 23 On about Friday 14 April 2000 when residing with the offender's sister at Golden Grove Street, an incident occurred in which Tristen suffered a spiral fracture of the left tibia. The offender has given inconsistent versions of events associated with this incident. 24 In his ERISP of 25 April 2000, he told police that he returned home at about 8.30 pm and that Leanne told him that Tristen had fallen down the stairs. In his evidence given on 19 September 2001 the offender was asked in chief the question: (T.137.15) "Q. What time did you come home? A. Well I'm always in and out, so it would have been between 11, 12, and 12.30. Q. Can you tell us what happened when you got home at that time? A. I came up to the stairs at Golden Grove Street, going home to my sister's place and when I walked into the house I seen Tristen on the floor at the bottom of my sister's stairs. I walked in and I looked at him, seen what he was doing. Q. How did he appear at that time? A. He didn't look like he could get up. Q. When you say the bottom of the stairs is that inside the unit? A. Yes. Q. And is that in the bedroom area of the unit? A. No it's at the front of the two bedrooms. Q. What happened then? A. I looked him over, because he didn't look like he could get up, so I picked him up. I took him upstairs to the lounge-room. Leanne I think was already there, or coming from the balcony, and I asked her what had happened to Tristen and when she came in I checked his leg. I asked him to stand up. Tristen couldn't stand up, so I said to Leanne, I said "There's got to be something wrong with his leg". Because I've felt it, and when I felt it it was swollen. Q. Was the child distressed at that time? A. He was a bit whingey when I grabbed his leg. Q. What happened then? A. Then I kept checking his leg over, I turned it to the right, and then I turned it to the left, and then straight again, and I heard a little clicking noise. So I said to Leanne, "There's got to be something wrong with his leg". Leanne ran outside and got a bandage off - I don't know who she got the bandage off." 25 The offender's evidence in chief is consistent with the evidence of Leanne Eriksson, who described being told by the offender the following: "I found him [Tristen] down the bottom of the stairs. When I picked him up I heard something crack" . 26 Leanne Eriksson also gave evidence that the offender's niece, Tyler, was present at this time. Tyler was a child of some six years of age. When she endeavoured to describe events which tendered to inculpate the offender, she was silenced by the offender. 27 On Saturday, 15 April 2000 Tristen was taken to Royal Prince Alfred Hospital where he was diagnosed as having sustained a spiral fracture of the left tibia. Dr Dihn, who cared for Tristen upon his admission to Royal Prince Alfred Hospital on 15 April, detected no other injuries at that time. 28 At post mortem, in addition to the fractured tibia, there were established fractures to the right humerus above the elbow and to the right seventh and eighth ribs, as well as the left scapula and clavicle. A number of abrasions, lesions and bruises were observed to the head, chest and limbs, as well as internal abdominal haemorrhaging. The direct cause of death was a subdural brain haemorrhage. 29 On Tuesday, 18 April 2000 Leanne Eriksson left Tristen in the care of Paul Hill for a period of some forty five minutes while she went to the nearby shops. On her return she inquired as to how Tristen was and received, inter alia, the reply "I done something". Upon further enquiry the offender said "I couldn't handle him crying. I threw him onto the corner of the lounge and he hit his head". 30 The sequence of events which followed as set forth in the statement of witnesses and the material tendered makes it plain beyond question that Tristen's condition deteriorated thereafter. By Wednesday, 19 April he was speaking very little; regurgitating such food as he was able to eat; had lost mobility and the use of the right side of his body. 31 The credibility of the offender has been challenged by the Crown as has that of Leanne Eriksson by Mr Zahra, senior counsel for the offender. 32 The credibility of Leanne Eriksson has been the subject of careful analysis in helpful written and oral submissions by Mr Zahra. It is apparent that at a time when she was in love with the offender, and desired to continue and develop her relationship with him, that she gave to hospital staff and authorities versions of events which sought to exculpate the offender. 33 I am satisfied that the offender was the dominant partner in their relationship and that in failing to seek medical attention for Tristen, Ms Eriksson was largely influenced by the offender and the dire consequences he encouraged her to believe would flow from any investigation by authorities of the origin of the child's injuries. 34 I am nevertheless satisfied that in making her statement of 21 August 2001, and in giving her evidence before me on 12 and 13 September 2001, Ms Eriksson was endeavouring to tell the truth to the best of her ability and recollection. 35 I do not accept the offender as a witness of truth. His denial of any maltreatment of Tristen and his denial of a close and intimate relationship with Leanne Eriksson are both contradicted by the unchallenged statements of independent witnesses to whom I have referred with regard to his conduct and by the letters which he wrote to Ms Eriksson as to the depth of his feelings and affection for her. 36 On Thursday, 20 April 2000, the day appointed for Tristen to see a specialist orthopaedic surgeon at Royal Prince Alfred Hospital, with regard to his fractured tibia, he was taken instead to the Royal Easter Show. On that occasion, Tristen was observed by those present to be in a very poor state of health. He rejected food and was suffering from loss of mobility. Tristen's condition did not improve over the Friday and Saturday and on Sunday morning, 23 April, he began fitting. He was placed in the bath and attempts were made by Paul Hill to give him cardio-pulmonary resuscitation. An ambulance was summoned by the offender and at about 10.50 a.m. Tristen was taken to Royal Prince Alfred Hospital. 37 The medical evidence is consistent with Tristen sustaining a major head injury on 18 April 2000. Doctor Langlois expressed the opinion that the constellation of injuries noted during autopsy would have been inflicted ten to fourteen days before the autopsy, that is to say between 14 and 18 April 2000. The fractures had formed callus, which indicated that they were more than seven days old. Professor Harper, Professor of Neuropathology, from the Royal Prince Alfred Hospital and the University of Sydney, was of the same opinion. 38 I accept it to be common ground between the medical experts that Tristen sustained further trauma to the head shortly prior to his admission to hospital on 23 April 2000. It is not possible to say precisely when this final injury occurred. 39 Doctor Neil Langlois, forensic pathologist, is of the opinion that the time interval between trauma and leakage of the cerebro-spinal fluid, which was found upon admission, could range from almost instantaneous to a matter of hours. 40 Doctor Gregory Rowle, paediatric specialist, expressed the opinion that Tristen sustained a major injury on the day of his admission to hospital and that it was very likely that there was then a pre-existing brain injury. 41 Doctor Rowle expressed the opinion that the oedema or swelling of the brain, which caused the brain stem injury leading to cardiac arrest, developed in a matter of minutes and led to an arrest within the space of at most a few hours following the injury. 42 When asked to encapsulate the complete picture which he saw as a result of the whole of the history, that is to say the medical history relating to treatment, Professor Harper said this: "I believe between ten and fourteen days before this child died something happened which stopped the oxygen to his brain at the same time he suffered a head injury, which resulted in him developing a subdural haematoma. The lack of oxygen has caused very, very severe brain damage to the extent that had nothing else happened to this child he would have been permanently debilitated and would have been virtually a vegetable. Certainly within four days of the death based mostly upon other evidence, not my own evidence, it appears the child suffered a second injury which resulted in a fracture of the petrous temporal bone, which caused leakage of CSF, and given the leakage I saw within the older subdural haematoma it is also likely that resulted from his old head injury.

The combination of both, of the brain damage or oedema, there is absolutely no space left within the skull for the brain to continue to function or for the blood to flow into the brain and that forced the brain down through the base of the skull, it is called the foramen magnum, and that is the site where our bodies meet and respiration is controlled, and if you compress that, everything stops and that is the final common pathway of this child's death." 43 I am satisfied that within a period, probably of the order of four hours, prior to admission to Royal Prince Alfred Hospital on 23 April 2000, Tristen sustained a second injury which caused the oedema which, in turn, resulted in cardiac arrest. This second injury may be considered to be the direct cause of death. 44 The events which took place on the morning of 23 April are to be gleaned from the evidence of Ms Eriksson and the offender. 45 I do not propose to review that evidence in detail. Suffice it to say that it does not, in my view, permit a finding beyond reasonable doubt that the offender inflicted a further injury on that occasion so as to constitute manslaughter by an unlawful and dangerous act. 46 The evidence makes plain, however, that over a period of some five days the offender failed to seek, for the child Tristen medical assistance and treatment of which he was obviously in dire need, and further that he influenced Ms Eriksson to do likewise. 47 I am further satisfied on the criminal standard that on 18 April 2000 the offender so injured the child Tristen as to cause the multiple injuries, with the exception of the prior fracture to the tibia, as were disclosed on post mortem examination, as well as the brain damage of such severity as to result in the degree of permanent debilitation described by Professor Harper as "virtually a vegetable". When taken together with the influence exercised by the offender to deter Ms Eriksson from seeking medical treatment, these are circumstances of the gravest aggravation. The subjective considerations 48 Subjectively, the offender, who was born on 27 April 1977, is presently aged twenty four and a half years. He was aged 23 years at the time of the offence. 49 The offender disclosed to Ms Mary Anderson, clinical psychologist, that he was brought up in Sydney in a family which included his mother, two sisters and a step-father. The offender did not see his natural father while he was growing up, but has been in touch with him since. He described his step-father as "violent when we were young kids". His mother and step-father are still together. 50 The offender resented being disciplined by his step-father and joined his friends in truanting from school, although he continued at school until year 10 at Newtown High. 51 The offender described himself to Ms Anderson as getting into "… a lot of trouble with police and with my mouth". The offender's criminal history dates back to 1993 and relates a series of offences, some of a minor nature, others more serious resulting in the imposition of control orders and periods in custody. In 1999 the offender was indicted on an assault charge for which punishment was imposed. In 2000 he was convicted on charges of maliciously destroying or damaging property, and for having goods in his custody reasonably suspected of being stolen. In that year also there were convictions for break, enter and steal and for common assault. 52 The offender has used alcohol and marijuana from the age of 13 years and associates his alcohol use with his more aggressive offences. He commenced an apprenticeship as a chef, however, his brief employment ceased due to the need for time off for court appearances and no doubt their consequences. He has worked as a removalist and apparently holds a fork-lift driver's licence. The offender has a daughter from an earlier relationship. Whilst the offender admits to alcohol abuse from an early age, he claims to have, on various occasions, been able to stop using alcohol on his own volition. He has done various drug and alcohol courses in the past and I note that three, two hour courses have been attended by him in December and January last, as well as an anger management course in March of this year. 53 Although the basis upon which the manslaughter of Tristen Lane is that of criminal negligence in both the case of the offender and Leanne Eriksson, in her case the absence of the serious aggravating features to which I have referred; her early plea and her assistance to authorities renders parity of sentence irrelevant. 54 Whilst the degree of criminality in manslaughter by unlawful and dangerous act is at a more serious level than that of criminal negligence, the gravity of the aggravating circumstances in the present case mandate condign punishment. 55 Considerations of personal and general deterrence are also of importance to deter like minded individuals. The rehabilitation of the offender, bearing in mind his youthful age is to be considered. I also take into account that the nature of the offence may mean that the offender will serve his sentence or part of it in protective custody. 56 There has been no expression of contrition or remorse other than in the bare plea itself. The plea of guilty was a late plea made after the co-offender's plea at a time when she had undertaken to give evidence against the offender. The offender is entitled to some discount for the utilitarian benefits to the community, which I assess at approximately 11%, being at the low end of the scale recognised in the guideline judgment of R v Thomson and Houlton (2000 NSW CCA 309 -17.8.00) 57 I do not consider there to have been anything of an exceptional kind in the aboriginality or upbringing of the offender that calls for particular mitigation of sentence. R v Pitt (2001 NSW CCA 156). 58 No submissions have been made that there are special circumstances which would warrant variation of the statutory ratio of sentence and non-parole period and in my view there are no circumstances which would justify a variation. 59 In R v Blacklidge (NSW CCA 12.12.95) at 4 Gleeson CJ said this: "… the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1991) 3 A Crim R 397 at 402)." 60 The starting point in the present case, taking into account the matters to which I have made reference, is a sentence of 9 years imprisonment. A reduction of approximately 11% for the plea of guilty reduces this figure to 8 years. The offender has been in custody, referable to this offence, since the date of his arrest on 25 May 2000. 61 Paul Geoffrey Hill on the charge of manslaughter to which you have pleaded guilty and have been convicted, you are sentenced to imprisonment for 8 years commencing on 25 May 2000 and expiring on 24 May 2008. There will be a non-parole period of 6 years commencing on 25 May 2000 and expiring on 24 May 2006 on which date you will be eligible for release to parole.

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