REGINA v HOERLER

Court of Criminal Appeal (NSW)|2004-06-11|Before: Spigelman CJ, Hulme J, Adams J, Miles AJ

CITATION : REGINA v HOERLER [2004] NSWCCA 184 revised - 10/08/2004 HEARING DATE(S) : 17/05/04 JUDGMENT DATE : 11 June 2004

JUDGMENT OF : Spigelman CJ at 1; Hulme J at 75; Adams J at 86 DECISION : Appeal allowed.

CATCHWORDS : CRIMINAL LAW - Crown appeal against sentence - manslaughter of child by carer - gratuitous cruelty - sentencing range - relationship between sentence for murder and sentence for manslaughter LEGISLATION CITED : Criminal Appeal Act 1912 R v Woodland [2001] NSWSC 416 R v Vaughan (1991) 56 A Crim R 355 R v Ditford (unreported, NSWCCA 17 March 1992) R v Dawney (unreported, NSWSC 1999) R v Howard [2000] NSWSC 876 R v Bilton [2000] NSWSC 1113 R v Recalde [2000] NSWSC 1247 R v Isaacs (1997) 41 NSWLR 374 R v Wilson [2003] NSWSC 1257 R v Weinman (1987) 49 SASR 248 R v Boyer (1981) 3 Crim App R (S) 35 R v Blacklidge (unreported NSWCCA 12 December 1995) R v Parazisis & Bird (1991) 51 A Crim R 242 R v Green [1999] NSWCCA 97 CASES CITED : R v Whyte (2002) 55 NSWLR 252 Wong v The Queen (2001) 207 CLR 584 R v Wilson [2003] NSWSC 1257 R v Marshall [2003] NSWSC 448 R v Folbigg [2003] NSWSC 85 R v Webb [2002] NSWSC 618 R v Byrne [2001] NSWSC 1164 R v Vangelder (unreported, NSWCCA 28 February 1994) R v Murdoch (unreported, NSWCCA 10 December 1998) R v Rose (unreported, NSWCCA 23 May 1996) R v Jurisic (1998) 45 NSWLR 409 R v Holder (1983) 3 NSWLR 245 R v Hallocoglu (1991) 29 NSWLR 67 R v Gordon (unreported, NSWCCA 7 February 1994) R v Kalache [2000] NSWCCA 2 PARTIES : Regina v Christopher Hoerler FILE NUMBER(S) : CCA 60523/03 COUNSEL : R Cogswell SC (Crown) C Craigie SC (Hoerler) SOLICITORS : S Kavanagh (Crown) S O'Connor (Hoerler)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70097/02 FILE NUMBER(S) : LOWER COURT Miles AJ JUDICIAL OFFICER :

25 - IN THE COURT OF CRIMINAL APPEAL 60523/03

SPIGELMAN CJ HULME J ADAMS J

Friday, 11 June 2004 REGINA v Christopher HOERLER Judgment 1 SPIGELMAN CJ: This is a Crown appeal against sentence. The Respondent pleaded guilty to manslaughter. Miles AJ sentenced him to a period of imprisonment of eleven years and fixed a non-parole period of eight years and three months. Originally the Respondent was arraigned on a charge of murder. The trial proceeded until the point at which the prosecution closed its case. Counsel for the accused sought time to get instructions. Thereafter the Crown accepted a plea of guilty in full discharge of the indictment.

The Offence 2 The victim was a seven month old baby, Jordan Anderson. The offence occurred at Wagga Wagga on the early morning of 25 February 2000. The baby's mother was Ms Louise Anderson who lived at the house with her three children, Jordan and two other sons then aged about three and four. The offender had been in a relationship with Ms Anderson for some two months and was also living at the house. 3 During the course of the evening of 24 February 2000 a party took place at the house. People came and went. Some cannabis and beer were consumed. The music was loud. By about 1.30am the music was turned off and at that time all except one young man had left. The Respondent walked that man to his home nearby. Meanwhile Ms Anderson had gone to bed. Her two elder boys were asleep in the lounge room on the sofa. Jordan was asleep in his pram or stroller in the lounge room when the last guest left. 4 The offender returned between 1.30 and 2.00am. His Honour found that he had drunk about nine bottles of beer and was probably moderately affected by beer and cannabis, possibly affected to a significant degree. 5 During the course of the evening nothing untoward was noted about Jordan's behaviour. He was sometimes asleep and sometimes awake, either in the lounge room or in the backyard in his pram or stroller. According to Ms Anderson, Jordan was in the lounge room in his pram strapped in when she went to sleep. 6 Ms Anderson's next recollection is of the offender waking her and saying that Jordan had fallen out of his pram and was not breathing. At about 3.00am neighbours heard the offender calling for help in a distressed voice saying something to the effect that "the baby is not breathing". An ambulance was dispatched at 3.11am. The ambulance officer sought unsuccessfully to resuscitate Jordan. 7 The police arrived at about 3.30am. The offender told them he had been lying on the floor and when he woke up saw Jordan on the floor frothing at the mouth. He said that he did not see Jordan fall out of the pram. In later interviews the offender maintained this account. 8 A post-mortem examination was conducted and found the following injuries:

1 widespread abrasions and bruises to the head and face;

4 penetrating injuries to the hard palate by the lower teeth;

10 inhalation of vomitus. 9 The report of the forensic pathologist also said: "With the exception of the bruised scrotum, all injuries appeared to be of the same age, and were fresh. They were all of similar origin, in that they were the result of blunt force injury. The rounded bruises of the trunk were of the type seen by contact with knuckles or fingertips. This was consistent with the underlying injuries … Most injuries were not specific enough to implicate any single object." 10 That was not true however of the crush injuries to the toes. Those injuries were described by the forensic pathologist as having "been caused by a heavy crushing force acting from front to back. The pattern of parallel bruises and extent of injury would be consistent with infliction by the clamp …". 11 His Honour made the following findings with respect to toe injuries: "[27] … At post-mortem examination, Dr Lee found marks on the toes of both feet in the nature of bruising caused by crushing injury. The marks were in a pattern of parallel bruises or lines, suggesting the application of force more than once. When informed of the finding by Dr Lee, police that evening carried out a further search of the house and on a box inside the wardrobe of the main bedroom, they found what was described as a clamp. Its purpose, as Ms Anderson explained, was to attach a small electric fan to a table or other items of furniture. Dr Lee thought that the injuries to the toes were consistent with the application of the clamp." 12 His Honour also referred to the evidence of a forensic biologist with respect to bloodstains on the shorts worn by the Respondent during the evening. The doctor referred to expert evidence on blood spatter patterns to the following effect: "[17] … there was medium velocity impact spatter on the top of the mattress cover and also on the bedroom wall. He also concluded that there was medium velocity impact spatter on the shorts worn by the offender which was consistent with the projection of blood from the deceased, assuming that the deceased was on the bed at the time and had received injury sufficient to produce external bleeding such as the injuries to the mouth and lip." 13 His Honour summarised expert evidence to the following effect: "[18] … the only injuries which could reasonably be expected to produce external bleeding were those of the palate and lip and that ' the external appearances of bleeding from those sites would be expected to be modified' by active or forced movement of the head, such as coughing, shaking or impact to the head." 14 His Honour also referred to the evidence of a paediatric surgeon, which he accepted, to the following effect: "[20] …He concluded that death followed promptly after the inhalation of vomit. He considered that the injuries generally would have required considerable force, that the facial injuries were consistent with the body being dragged facedown over a surface such as a carpet or sofa, that the palate injury was caused by a blow to the jaw and the abdominal injury by a non-penetrating blow or blows of considerable force and not by falling out of a pram. Dr Currie considered that the cause of death was inhalation of vomit and asphyxiation and concluded:- 'What caused Jordan to vomit and aspirate is indeterminate, as the shock of the head injury with some concussion or the squeezing chest injury with fractured ribs or the blow to the liver could all have produced a large vomit with aspiration.'" 15 The Respondent did not give evidence in the sentence hearing. However, he had made statements to a psychiatrist and the probation and parole officer that he had only struck the child twice at the request of the mother to stop it crying. His Honour rejected that evidence. His Honour concluded as follows: "[26] I conclude, and am satisfied beyond reasonable doubt, that the extent of the child's injuries was much greater than what could have been caused by striking the head twice with an open hand. The injury which pushed the lower teeth into the roof of the mouth must have involved considerable force delivered by a punch. Similarly, the injury or injuries to the abdominal area must have involved considerable force also delivered by at least one punch. There is a possibility that the rib fractures were caused by squeezing or hugging of the baby but it is unlikely. The injury to the frenulum was caused either by the severe blow which caused the injury to the palate or by a separate blow of less severity. Overall there must have been several and not only two blows. … [29] The only rational explanation of the circumstances is that it was the offender who alone took the child from the pram in the lounge room into the bedroom and there struck the child repeatedly with at least one punch to the head and at least one punch to the abdomen and at some stage applied the clamp to the baby's toes causing the child to vomit and die of asphyxiation or vomit inhalation or both. The child died as a result of an unlawful and dangerous act on the part of the offender."

The Remarks on Sentence 16 His Honour noted that the varying degrees of criminality inherent in the offence of manslaughter meant that the range of sentences and penalties imposed is wider than for other offences. His Honour noted the proposition that "little assistance can be gained from other cases" but stated that he accepted the submission put on behalf of the Respondent that: "[35] … The similarity between the factual circumstances of cases involving the unlawful killing of very young children by parents or carers may enable useful comparisons to be drawn, particularly where there has been pronouncement at appellate level in order to avoid disparity or inconsistency in sentence, both with regard to the objective seriousness of the particular facts under consideration and the weight to be given to various aspects of the subjective circumstances of the particular offender." 17 His Honour referred to the judgment of Wood CJ at CL in R v Woodland [2001] NSWSC 416 and particularly to his Honour's observations at pars [27]-[30] of that judgment which Miles AJ incorporated in his own judgment. 18 Those observations by Wood CJ at CL are as follows: "[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) Ditfort 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, Ditfort, 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 Ditfort ; 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." 19 Miles AJ went on to state, with reference to the cases summarised by Wood CJ at CL in Woodland, as follows: "[37] These cases establish a range of sentences for the unlawful killing of very young children by parents or carers between five years imprisonment on a plea of not guilty to murder but guilty of manslaughter ( Vaughan (1991) 56 A Crim R 355) and ten years imprisonment ( Ditfort , NSWCCA, 17 March 1992, also a case of plea of not guilty of murder but guilty of manslaughter). Lee CJ at CL said in Vaughan , at p359, that, at that stage, the cases did no more than demonstrate that the courts have always regarded assaults by parents on little children resulting in death, as grave and serious cases of manslaughter." 20 His Honour then referred to sentences for murder and, also, to what his Honour identified to be a sentencing pattern in the aforementioned cases. His Honour said: "[40] I understand that sentences of less than 25 years have been imposed for murder in recent years. Unless and until there is a single offence of homicide in which murder and manslaughter are undifferentiated, I think that it would be entirely against the tradition and history of the criminal law to allow a situation to develop where the crime of murder could be treated as less serious than manslaughter except in the clearest and most exceptional circumstances. [41] Further, to impose the maximum penalty for the present offence, or indeed, to impose a sentence of substantially more than ten years, is so far beyond the range of sentences established by past sentencing practice in this Court in recent years that to do so is not the task of a judge at first instance but of the Court of Criminal Appeal if it is minded to do so, and then, as I understand it, only after an indication that the past practice is to be changed." 21 His Honour referred to the plea of guilty both in terms of its utilitarian value and as an indication of contrition. His Honour noted that the plea was offered at the end of the Crown case. The discussions between the Crown and the representatives of the Respondent were not such as to enable his Honour to conclude that the plea was proffered at the first available opportunity. In the end his Honour assessed the utilitarian value at ten percent on the basis that it was of limited value. This allowance also took into account the element of contrition which his Honour also described as being of limited significance for the reasons he advanced as follows: [47] "Moreover, despite what we now known to be the brazen denials to the police and the attempt to implicate innocent people, there is some evidence of contrition in what the offender said to the psychiatrist and the probation and parole officer. The human mind is complex and conflicting attitudes and emotions compete with each other. I accept that there is an element of positive contrition." 22 Perhaps the central step in his Honour's reasoning, after setting out the variety of considerations to which he would have regard on the issue of penalty, found in the following paragraphs of his Honour's judgment: "[49] The sentencing judge in Ditfort (described by the Court of Criminal Appeal as the most experienced judge in the State) took into account a relatively late plea of guilty of manslaughter offered on arraignment for murder. Although that was in the days before the guideline judgments, it may be inferred that, if there had not been a plea of guilty and there had been a verdict of manslaughter after trial, a sentence of some twelve years would have been imposed and not interfered with by the Court of Criminal Appeal in that case. The facts, and the culpability, involved were much the same as in the present case. The sentencing judge referred to the community's demand that a heavy sentence be imposed for such an horrific crime against a defenceless child in the applicant's case. Hunt CJ at CL added that there is always a paramount need for sentences in such cases to provide public deterrence against crimes of violence against children. For my self, I am not confident about the deterrent effect on such socially aberrant behaviour and consider that it should be acknowledged that the main purpose of severe punishment in such cases is denunciation, even retribution. It makes no difference to the result. [50] I propose then to take twelve years as a starting point for the purposes of the present case. I would proceed to reduce it by some 10 per cent for the limited utilitarian value of the plea and the limited significance of the actual contrition. However, there is the countervailing factor of the matters to be taken into account on Form 1. For the reasons given in the guideline judgment and as a matter of discretion where a young offender is facing a lengthy sentence for the offence on the indictment, I would increase the overall sentences only marginally for the matters on Form 1." 23 His Honour went on to fix the non-parole period, noting the reports from the probation and parole service and of psychiatrists. His Honour did not make a finding of special circumstances and accordingly fixed the statutory relationship between the head sentence and the non-parole period.

Issues on the Appeal 24 The Crown identified two legal errors in his Honour's reasoning which, it submitted, would justify this Court intervening. 25 First, the Crown directed attention to that passage of his Honour's judgment at par [40], quoted in par [20] above, in which he indicated that it was unacceptable for the crime of murder to be "treated as less serious than manslaughter except in the clearest and most exceptional circumstances". The Crown submitted that, although there was a clear hierarchy in offences of homicide, it was not the case that sentences for manslaughter would overlap sentences for murder only in "the clearest and most exceptional circumstances". This proposition is correct. The degree of overlap between sentencing for manslaughter and murder is not able to be stated in terms of identifying "most exceptional circumstances" or words to that effect. 26 The elements of murder include an intention to kill or to inflict grievous bodily harm. Such an intention is, of course, of the greatest significance in the sentencing exercise. Where it is present and a charge of murder is made out, the appropriate sentence will generally be higher than for other forms of homicide. Plainly, other circumstances being equal, the moral culpability of the offender is significantly higher where one person causes the death of another in circumstances where an intention to do so exists. Nevertheless, the multifarious situations in which homicide can occur and the wide range of other considerations that must be taken into account in the exercise of the sentencing discretion are such that it is not correct to conclude that it is only in the "clearest and most exceptional circumstances" that any conviction for manslaughter could lead to a higher sentence than any conviction for murder. 27 Many charges of manslaughter are accompanied by the requisite intent, but the conviction is reduced to manslaughter by reason of provocation or diminished responsibility. In some such cases the extent of provocation or the degree to which responsibility was diminished is not such as to significantly reduce the appropriate penalty below the maximum permissible for manslaughter. On the other hand there are situations in which the charge of murder may be accompanied by circumstances which reduce the objective gravity of the offence, e.g. a case of euthanasia or a suicide pact. Such matters can result in an appropriate sentence being well below the maximum permissible for manslaughter. 28 There is a hierarchy of offences. However the existence of such a hierarchy does not lead to the situation that, where sentences of less than twenty-five years have been imposed for murder, sentences for manslaughter must generally be imposed for a significantly lesser period. 29 Even a case where there is present an intention to kill or maim, which would constitute murder but which is reduced, by reason of provocation or diminished responsibility, to a charge of manslaughter, will not necessarily attract a higher sentence than other forms of manslaughter, including the one relevant here, i.e. killing by an unlawful and dangerous act. As a five judge bench of this Court, including Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, said in R v Isaacs (1997) 41 NSWLR 374 at 381: "The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse than a case of manslaughter by an unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentences." 30 Paragraph [40] of his Honour's judgment, set out in par [20] above, is open to the interpretation for which the Crown contends, but does not require such an interpretation. I have no doubt that a judge of the experience of Miles AJ was well aware that sentences for murder and manslaughter can and do overlap. His Honour was referring to the general position that a conviction for murder would ordinarily attract a greater penalty than a conviction for manslaughter. I would reject this basis for alleged legal error. 31 The second error identified by the Crown concerned his Honour's treatment of the sentences imposed in other cases, as summarised in the judgment of Wood CJ at CL in R v Woodland and, particularly, the sentence in R v Ditfort NSWCCA 17 March 1992 (unreported). 32 Although his Honour recognised the wide variety of circumstances in which the crime of manslaughter can occur he did place reliance on what he identified to be an established range in child killing cases. Referring to the cases summarised in Woodland, supra, his Honour accepted at par [37] quoted in par [19] above that: "These cases establish a range of sentences for the unlawful killing of very young children by parents or carers between 5 years imprisonment and … 10 years imprisonment". (See also at [41] quoted in par [4] supra.) Miles AJ adopted a similar analysis in another case of this character which his Honour sentenced on the same day as the present case. (See R v Wilson [2003] NSWSC 1257 at [62]-[68].) 33 His Honour proceeded to treat Ditfort as if it were a benchmark. Indeed at par [49], set out at par [22] above, his Honour found that "the facts and the culpability involved were much the same as in the present case". His Honour took what he understood to be the starting point in Ditfort as the starting point for the sentencing exercise before him. 34 Counsel for the Respondent relied on Ditfort and in particular the references in Ditfort to the sentence in that case being at "the top of the range". However, that is to misunderstand the references in that case to "a range". Those references concerned the appropriate range for sentencing in that specific case, including both its objective and subjective circumstances. They were not references to an appropriate "range" for child killing on a charge of manslaughter. 35 Prior cases and Judicial Commission statistics do not often determine a range appropriate for a particular offence. They reflect what was regarded as appropriate in the wide variety of circumstances of those particular prior cases. Whether or not a sentencing pattern can be said to have emerged requires consideration of the whole body of sentences. It is unlikely that any such pattern can be said to have been established unless there have been a significant number of cases covering a wide variety of objective circumstances. Unless that is so, the cases would not encompass the relevant range of objective criminality. 36 In my opinion this second basis on which the Crown alleges his Honour committed a legal error should be upheld. I do not agree that the cases to which his Honour referred were such as to lead to the conclusion that a recognisable sentencing pattern or range can be said to have emerged with respect to the crime of manslaughter by an unlawful and dangerous act committed by parents or carers on very young children. Nor, in my opinion, is Ditfort so closely analogous as to serve as a benchmark for purposes of the sentencing exercise in this case. 37 Wood CJ at CL did not suggest in Woodland that the six cases which he set out in his judgment indicated anything in the nature of a sentencing pattern. What his Honour said when introducing the list of cases was: "[28] Notwithstanding the caution which needs to be exercised in seeking guidance from other cases of manslaughter, references to decisions similarly involving the killing by the parent or a carer of a young child, by an unlawful and dangerous act, is of some assistance." 38 Wood CJ at CL identified certain principles appropriate for sentencing in such cases as quoted in par [18] above. His Honour did not suggest that the cases to which he referred had established a range in the sense of a sentencing pattern. 39 Manslaughter may vary, as has been pointed out, from a joke gone wrong to facts just short of murder. (R v Weinman (1987) 49 SASR 248 at 252.) This variation is reflected in sentencing. As Dunn LJ said in R v Boyer (1981) 3 Crim App R (S) 35 at 37: "The offence of manslaughter attracts the widest band of sentences for any offence known to this court. The sentence can vary from life imprisonment to a conditional discharge. It depends on the precise circumstances of the case. It is impossible to subdivide the offence of manslaughter into different categories and say any particular sentence is appropriate to any particular category of events." 40 Similarly, Gleeson CJ pointed out in R v Blacklidge (NSWCCA unreported 12 December 1995) at [4]: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances and culpability." 41 It may be possible to identify a distinct category of manslaughter for which variations on a basically similar factual situation can be identified. (See R v Parazisis & Bird (1991) 51 A Crim R 242 at 245.) However, this can only be done if there is a significant number of cases which share the common characteristic and which represent a very broad range of differing circumstances. Child killing by a parent or carer does not occur so frequently to make it possible to deduce a sentencing pattern from past cases. There is no reason to believe that the six cases referred to by Wood CJ at CL in Woodland cover the relevant range of objective criminality. 42 Plainly a violent attack, albeit not one accompanied by an intention to kill or inflict grievous bodily harm, by a person in a position of trust and responsibility upon a defenceless young child, is a circumstance of considerable aggravation. In this sense only can the offence of manslaughter in such cases be regarded as some form of separate category. It is a circumstance of such significance that it is entitled to substantial weight in the exercise of the sentencing discretion. The sense of outrage in the community about such a case is so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion. However, there is such a wide variety of other factors which may accompany this circumstance, that sentences for offences which share only this characteristic would not be expected to result in an identifiable sentencing range or pattern. 43 In the case of manslaughter, as I noted above, the acts constituting the offence and the circumstances of the offender at the time of the offence, may vary over a very wide range of objective gravity. The actual physical assault leading to death can range from comparatively minor force to a sustained beating over a prolonged period of time, incorporating elements of gratuitous cruelty. The personal culpability of the offender may vary from a carer who acts out of despair or in circumstances bordering on accident, to the vicious acts of a sadist. 44 In this regard child killing does not differ from other cases of manslaughter. When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly. 45 The fact that child killing is not a distinct subcategory of the crime of manslaughter for purposes of sentencing is suggested by a recent study of the Judicial Commission of New South Wales, published after his Honour's sentence in this case. (Judicial Commission of New South Wales Sentenced Homicides in New South Wales 1994-2000 Monograph Series 23, January 2004.) 46 That research shows that over the period of the study, the median sentence for murder or manslaughter of a child did not diverge significantly from the median sentence for other kinds of murders and manslaughters. In the case of manslaughter, non-child killers had sentences in a range from eighteen months to twenty-two years with a median head sentence of seven years, whereas child killers were sentenced in a range of two years to sixteen years, also with a median sentence of seven years. Non-parole periods for manslaughter ranged from nine months to sixteen years in the case of non-child killers with a median of 4.5 years and, in the case of child killers, from eight months to eleven years, with a median of 4.4 years. I should note that the child killers category included both parents or carers and other offenders who were not in a close relationship with their child victims. This research also revealed a significantly lower pattern of sentencing in the case of parents or carers. This result was affected by the number of offenders in that subcategory who claimed diminished responsibility. This manifests how issues of moral culpability must, and do, temper the need for retribution. (See Judicial Commission of New South Wales, supra, esp at pp43, 47, 48-50.) 47 Neither the research, nor the cases set out in Woodland, indicate anything that could be accurately identified as a sentencing pattern for child killers who are in a parental or carer relationship with the victim. That the end results were of a particular character, and could be stated as if they were in a "range", is not such as could be said to establish a sentencing pattern. 48 As Barr J, with whom Greg James J and Carruthers AJ agreed, said in R v Green [1999] NSWCCA 97: "[24] Determining a proper sentence for manslaughter is notoriously difficult. Some assistance may be received from a consideration of the facts of other cases and the sentences imposed therein, but those cases do not determine an inflexible range of available sentences or reduce the maximum penalty applicable to a case which falls into the worst category of cases, namely 25 years penal servitude." 49 Even if no sentencing pattern can be identified, previous sentences are of some utility as a guide, by reason of the significance in the administration of criminal justice of the principle of consistency in sentencing. (See R v Whyte (2002) 55 NSWLR 252 at 168 to 189.) The principle was expressed by Gleeson CJ in Wong v The Queen (2001) 207 CLR 584 at [6] as follows: "All discretionary decision making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a forms of injustice. The outcome of discretionary decision making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency." 50 It was for such reasons that Wood CJ at CL in Woodland referred to other decisions for the purpose of "guidance" from which he said he could receive "some assistance" ([28]). He did not refer to them as representing a sentencing range or pattern. 51 In his reasons for judgment Miles AJ regarded the six cases referred to in Woodland as identifying a "range of sentences established by past sentencing practice in this court". In this, in my opinion, his Honour erred. The cases did not establish a sentencing pattern in that sense. 52 Furthermore, in my opinion, his Honour erred in regarding the starting point in Ditfort as in some way an authoritative indication of an appropriate starting point for purposes of the present case. Ditfort bears some similarities with the present case, but there are also significant differences. 53 In Ditfort there were two blows, one a particularly violent blow of considerable force. In the present case it is clear that the assault involved a number of blows which continued over a longer period. Here the fatal blow may have been of a similar force to that in Ditfort. However the overall assault within which that blow occurred could not be classified as a lashing out in a fit of temper. The violence occurred over a period of time and was accompanied by conduct, bordering on torture, of particular heinousness in the application of clamps to the toes of the baby with sufficient force to break the toes. 54 There is a contrast between the impulsiveness of the crime in Ditfort and the more sustained assault which the evidence indicates must have occurred in the present case. There is also an element of cruelty in the present situation which makes Ditfort an inappropriate benchmark to use as identifying the top of the range appropriate to be applied in the present case. 55 The offender in Ditfort had convictions for dishonesty, but no history of violence. The Respondent in this case had convictions for common assault and assault occasioning actual bodily harm. The element of personal deterrence was, accordingly, entitled to greater weight. 56 The subjective circumstances in Ditfort were of greater force. The judge in that case accepted the applicant's contrition as true remorse. The findings in this respect in the present case are much weaker. 57 Furthermore, in this case, unlike Ditfort there were additional offences to be taken into account on a Form 1. 58 Another factor differentiating this present case from Ditfort was the fact that the Respondent was on bail for a stealing offence at the time of the offence presently under consideration. 59 The Crown has made out legal error and, subject to s6(3) of the Criminal Appeal Act 1912, this Court should proceed to exercise the sentencing discretion afresh.

Re-sentencing 60 As my comparison with the case of Ditfort would suggest, I am of the opinion that the conduct for which the Respondent is to be sentenced constitutes an offence of greater gravity than that in Ditfort. Accordingly such guidance as can be obtained from that case indicates that the starting point for sentencing in this case should be higher than that in Ditfort. 61 In addition to the cases set out in Woodland, there are seven additional cases of manslaughter by a parent/carer by an unlawful and dangerous act, most decided since Woodland: · R v Wilson [2003] NSWSC 1257 - Miles AJ, where a sentence of nine years imprisonment, with a non-parole period of six years eleven months, was imposed in respect of a thirty year old female who killed her two year old foster son by shaking him, being an offender who showed no remorse and was not entitled to leniency as a result of youth or inexperience and who voluntarily took on the role as foster carer, and was in a position of trust and authority. · R v Marshall [2003] NSWSC 448 - Adams J, where a sentence of six years imprisonment with a non-parole period of three years and six months, was imposed in respect of a twenty-two year old man who killed the eleven month old baby of his girlfriend by violently shaking it in an act of unthinking momentary anger, the offender showing remorse and being psychologically impaired. · R v Folbigg [2003] NSWSC 85 - Barr J, where a sentence of ten years imprisonment with no non-parole period was imposed in respect of a mother who killed her one month old baby by smothering him, in circumstances where the offender was psychologically damaged. The offender was also found guilty of murdering three of her other children and intentionally inflicting grievous bodily harm on another of her children, for which she was sentenced respectively to eighteen years, twenty years, twenty-two years and fourteen years imprisonment. Barr J noted that cumulatively, her offences fell into the worst category of cases calling for the imposition of the maximum penalty, but that the offender's dysfunctional childhood mitigated the criminality. · R v Webb [2002] NSWSC 618 - Hulme J, where a sentence of seven and a half years imprisonment, with a non-parole period of four and a half years, was imposed in respect of a thirty-seven year old man who killed the three year old daughter of his de facto partner by pushing the infant against a wall, being an Aboriginal offender with above average prospects of rehabilitation, who showed remorse. Reference is made to this not being "a worst case". · R v Byrne [2001] NSWSC 1164 - Dunford J, where a sentence of eight and a half years imprisonment with a non-parole period of six years was imposed in respect of a mother who killed her five year old son by repeatedly hitting him and immersing him in a bath of overheated water, a reduction of fifteen percent having been allowed for her guilty plea. · R v Vangelder NSWCCA 28 February 1994 - Gleeson CJ, Newman and Sully JJ, where the Court of Criminal Appeal upheld a sentence of five years imprisonment with a non-parole period of three years in respect of a twenty-four year old woman who killed a four month old baby she was babysitting by forcefully shaking it. · R v Murdoch NSWCCA 10 December 1998 - Grove, James and Kirby JJ, where the Court of Criminal Appeal upheld a sentence of fifteen years imprisonment with a non-parole period of ten years in respect of a man who killed the three year old son of his de facto by striking the child with a blow to the abdomen and placing him in a cold shower. 62 These cases add to the range of circumstances but not sufficiently to establish a sentencing pattern over the whole of the relevant range. The case of Folbigg involves a higher sentence than that imposed by Miles AJ but has quite unique characteristics. 63 The case of Murdoch also involves a higher sentence. In Murdoch there was a single blow followed by immersion in a cold shower on a cold night. The child died of a combination of the blow and hypothermia. The judgment of this Court does not set out the full range of facts. The severity appeal against a sentence significantly higher than in the present case was dismissed. Grove J, with whom James and Kirby JJ agreed, said: "The term imposed was undoubtedly high in the range of sentences commonly seen for the crime of manslaughter but it has frequently been observed that this is a crime which covers a broad spectrum of culpability. The facts found by his Honour show the applicant's offence was in the more serious category … ." 64 The gratuitous cruelty by the immersion in the shower bears some comparison with the application of the clamp to the toes in the present case. However, Murdoch involved only a single blow. It is, nevertheless, closer to the present case than Ditfort. 65 In the present case, the injury or blow that actually caused the death cannot be determined with precision. The evidence of the paediatric surgeon set out in par [14] above indicates that any one of three blows could have caused the child to vomit which, upon inhalation, resulted in death. The most forceful blow was that to the face which caused the injury to the palate and the splatter of blood on the mattress, wall and, it appears most likely, to the shorts of the Respondent. The blow or blows to the chest with fracturing of ribs was a second possible cause. The third was the blow to the liver. Whichever of the blows caused the death does not need to be determined. Each was of a similar order of culpability. 66 The fact that the fatal blow occurred in the course of a prolonged violent attack elevates the level of culpability of the offender to a high order. That fatal blow was accompanied by at least two other blows, and probably more, any one of which could have been fatal. Furthermore, the conduct of the offender included the aggravating conduct of dragging the body of the baby over a surface, such as a carpet or a sofa, face down causing a number of facial injuries. Over and above that is the gratuitous cruelty of an almost grotesque character by the application of clamps to both feet of the deceased baby Jordan with sufficient force to break his toes. That conduct was not fatal and he is not to be sentenced for it as if it were an element constituting the offence. It does, however, make this a crime in which the conduct of the Respondent was of a high level of objective gravity as an incident of the overall conduct leading to the fatal blow. 67 This context in which the particular fatal blow was delivered indicates that the moral culpability attending the act which caused death was of a very high order. No explanation of any kind was offered on the part of the Respondent during the course of the sentencing hearing. All that there was were self-serving statements to an independent professional, in the course of an assessment for purposes of the sentencing hearing, a most unsatisfactory basis for putting such facts before a sentencing court. In those statements the Respondent sought to deflect his own responsibility by suggesting that his conduct, which he never admitted as going beyond two blows, was suggested by Ms Anderson. This version of the events, as well as the suggestion that all that had occurred was only two blows with an open hand, was rejected by Miles AJ. 68 There was nothing that could mitigate the moral culpability of the conduct at the time of the offence. Nor was there any other aspect of the position of the offender, either at the time of the offence or subsequently, that justified any substantial mitigation, other than the plea of guilty. The Respondent had a record, including offences involving violence. He was on bail at the time of the offence for which he stood to be sentenced. The expressions of remorse, again in the unsatisfactory form of untestable statements to a professional, duly recorded in a report for purposes of the proceedings by a person who has no reason to question the assertions and does no more than pass them on as assertions made by the offender, are entitled to little weight by reason of their limited content and the unsatisfactory manner in which the evidence was presented to the Court. 69 The plea of guilty is entitled to some weight for its utilitarian value. However, the offer to plead to manslaughter occurred only at the end of the Crown case. It is not apparent, on the materials before this Court, why the offer was accepted in full discharge of the Crown case for murder. As a verdict of manslaughter was always an available option, it could not be said that this offer occurred at an early time. Indeed it occurred very late. His Honour assessed the utilitarian value of the plea at ten percent and that seems appropriate. 70 The well-established principles of double jeopardy apply when this Court comes to re-sentence after a successful Crown appeal. The Court is obliged, in accordance with authority, not to set a sentence at the high end of the range appropriate to the particular case, namely a sentence which, although high, would have survived a severity appeal. The Court should impose the least sentence that should have been imposed by the sentencing judge. 71 As Gleeson CJ said in R v Rose (NSWCCA 23 May 1996 unreported) at p3, subsequently applied in R v Jurisic (1998) 45 NSWLR 409 at 232: "….. when re-sentencing a respondent on a successful Crown appeal this Court gives weight to the circumstances of double jeopardy involved in a Crown appeal by imposing a sentence that is the least sentence that could properly have been imposed upon the respondent at first instance". 72 It may be that this test is not consistent with other authorities in this Court. (See R v Holder [1983] 3 NSWLR 245 at 256C-D and 269F-270A; R v Hallocoglu (1991) 29 NSWLR 67 at 80F-81A.) In my opinion, the test propounded by Gleeson CJ in Rose should be applied in the present case. It may, however, be appropriate for a bench of five to consider, on some future occasion, the appropriate approach to resentencing on a successful Crown appeal. 73 In my opinion, the appropriate starting point, on this basis, was a sentence of sixteen years which after a ten percent reduction for the plea becomes a sentence of fourteen years and four months. There are no special circumstances which would justify reducing the statutory ratio. The non-parole period should be ten years and nine months. 74 I propose the following orders:

ii Sentence imposed by Miles AJ on 11 December 2003 quashed.

iii The Respondent is sentenced to imprisonment for fourteen years and four months commencing on 5 October 2001 and to expire on 4 February 2016.

iv The non-parole period is fixed at ten years and nine months commencing on 5 October 2001 and expiring on 4 July 2012. 75 HULME J: In this matter I have had the advantage of reading the reasons for judgment of the Chief Justice. Subject to the matters referred to below, I generally agree with them. His Honour's account of the circumstances of the offence, of the remarks of the sentencing judge and of the issues which arise on the appeal means that I can be brief. 76 In the course of his Remarks on Sentence, Miles AJ said:- "[40] I understand that sentences of less than 25 years have been imposed for murder in recent years. Unless and until there is a single offence of homicide in which murder and manslaughter are undifferentiated, I think that it would be entirely against the tradition and history of the criminal law to allow a situation to develop where the crime of murder could be treated as less serious than manslaughter except in the clearest and most exceptional circumstances. [41] Further, to impose the maximum penalty for the present offence, or indeed, to impose a sentence of substantially more than ten years, is so far beyond the range of sentences established by past sentencing practice in this Court in recent years that to do so is not the task of a judge at first instance but of the Court of Criminal Appeal if it is minded to do so, and then, as I understand it, only after an indication that the past practice is to be changed." 77 In my view the Crown has made out its contention that the first of the paragraphs contains both error and error which affected his Honour's conclusion as to the appropriate sentence to impose. Notwithstanding the argument to the contrary, the words used seem to me to indicate that his Honour was stating a reason for concluding he could not or should not impose a higher sentence. The reason stated is wrong. The range of sentences for manslaughter is from nothing to imprisonment for 25 years. The range for murder is from nothing (though it would be an extraordinary and perhaps inconceivable case for that to occur) to life imprisonment. Although it would be an unusual case of manslaughter which would justify a sentence above the range of sentences usually imposed for murder, and in the course of sentencing for manslaughter it is not inappropriate to reflect on the sentences imposed for the generally more serious offence, it is wrong to regard sentences for murder, whether these be low in, or in the middle of, the murder range as necessarily limiting the sentences to be imposed for manslaughter. 78 I am also unable to agree with the sentence proposed by the Chief Justice and with his Honour's starting point of 16 years. 79 The helplessness of infants and young children mean that not only do they need protection by adult members of the human race, they have no capacity to defend themselves from aggression by such adults. By reason of the relationship the Respondent established with the mother of his victim, the Respondent came under an obligation, if not to provide that protection, to at least ensure he did not depart from the rules of fundamental decency and respect for the rights of the helpless child. 80 Of course, what I have just said would be appropriate in virtually all of the too many cases of the manslaughter of infants which come before the courts and almost all of those have not had sentences of the order of that I propose here. What distinguishes this case from almost all others is the extent and, one may infer, the duration of the violence used, the gratuitous cruelty obviously employed, and the complete absence of any excuse or explanation - or at least one consistent with normal humanity - for the Respondent's actions. 81 In combination, the matters referred to in the two immediately preceding paragraphs cry out in this case for retribution to be given a much larger role than commonly afforded to it. As this Court said in R v Gordon (unreported, CCA, 7 February 1994):- "Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done." 82 Those matters also lead me to the conclusion that the Respondent's offence, although manslaughter, was worse than many cases of murder with which the courts have to deal. His record, indicating either a disposition for violence or an ability to control himself also argues for a longer rather than a shorter sentence. However, such was the Respondent's criminality here, demonstrated by the matters to which I have referred, that this past almost fades into insignificance by comparison. 83 Given that the Respondent's plea was only indicated after the Crown case at his trial had concluded, I am far from convinced that the Respondent is entitled to a discount of 10% for that plea. However, Miles J granted a discount of that order, and this is a Crown appeal. In the circumstances, I am content for the Respondent to receive that discount. 84 Although had I been the sentencing judge I would have imposed a higher sentence, I accept that in the circumstances of this Crown appeal, it is appropriate that the sentence imposed by this Court be at the bottom of the range for his offence. These days, that is the usual practice although not one which must invariably be followed - see e.g. R v Holder [1983] 3 NSWLR 245 at 256; R v Hallocoglu (1991) 29 NSWLR 67 at 80F and my discussion of the topic in R v Kalache [2000] NSWCCA 2 at [204 et seq]. 85 In my view, the commencing point in the determination of any sentence to be imposed on the Respondent should be not less than 18 years. I appreciate that this is but 2 years more than the figure proposed by the Chief Justice but such was the Respondent's criminality that I regard any lesser figure than the 18 years to which I have referred as inadequate. However, as mine is a dissenting view, I need not take the matter further. 86 ADAMS J: I have read the judgment in draft of the Chief Justice and agree with his Honour's conclusions with one qualification. 87 This is undoubtedly a very serious case of manslaughter. As follows from the post mortem report, the Respondent had seriously assaulted Jordan in a number of different ways. For the purpose of sentence, of course, it must be assumed that the Respondent did not intend death or grievous bodily harm to result. However, it is inescapable that his violence was intentional, repeated and severe. The state of mind with which the Respondent inflicted tis violence is illustrated by the cruel and clearly vindictive injuries to Jordan's foot, almost certainly caused by a metal clamp, demonstrating that his violence was not impulsive but acts of calculated cruelty. Where death is caused by such acts, the crime is very grave, even if this result is unintentional and unforeseen. 88 The Chief Justice has analysed a number of cases involving the manslaughter of children. These cases demonstrate the wide variety of circumstances and offenders that come for sentence under this rubric. If I may say so with respect, the sentence proposed by the Chief Justice is certainly within the range of sentence available to be properly imposed against this Respondent in the particular circumstances of this case. I am unable to agree, however, that it is "the least sentence that could properly have been imposed", vide Gleeson CJ in R v Rose (unreported NSWCCA 23 May 1996). In so formulating the test, I am mindful of and agree with the Chief Justice's observation about the need to reconsider it. I note that Gleeson CJ added that the sentence that he proposed in the case is, because of the implicit double jeopardy, "somewhat less than what I would have thought would have been a proper sentence at first instance". In particular, the fact that the offender's sentence is to be increased in a Crown appeal, by itself, is a relevant consideration affecting re-sentence which, of course, is irrelevant at first instance; furthermore, the offender has taken steps towards rehabilitation since his sentence which should be given some acknowledgement, although the objective gravity of his crime does not permit any significant adjustment under this head; and the respondent has been placed in the necessarily anxious and stressful situation of awaiting the outcome of the appeal, which has added to his punishment (although notice of appeal was given on 16 December 2003 it did not come on for hearing until 17 May 2004). 89 At all events, in my view, with respect, a starting point, before the utilitarian discount of fourteen years would not have been appealably wrong. Such an assessment is, of course, very much a question of judgment. In the circumstances of this case, having regard to the views of both the Chief Justice and Hulme J, I am not prepared to press my own view to dissent. 90 Accordingly, I agree with the orders proposed by the Chief Justice. **********

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