Regina v LC

R v Fernando (1992) 76 A Crim R 58 R v Marshall [2003] NSWSC 448 CASES CITED : R v Compton [2008] NSWSC 204 R v Hoerler [2004] NSWCCA 184, 147 A Crim R 520 R v Hoerler [2003] NSWCCA 1187

PARTIES : Regina (Crown) LC (Offender)

COUNSEL : J Kiely SC (Crown) S Hanley (Offender)

SOLICITORS : S Kavanagh - Solicitor for Public Prosecutions (Crown) P O'Brien, O'Brien Solicitors (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

REMARKS ON SENTENCE 1 HIS HONOUR: The offender was to face trial for the murder of a baby boy, who was only 13 months old. He pleaded guilty to manslaughter, on the basis that he killed the child by an unlawful and dangerous act, and that plea was accepted by the Crown in satisfaction of the indictment. He stands for sentence for that crime. 2 The law seeks to protect the anonymity of the child, as it does generally in respect of children involved in criminal proceedings in any capacity: Div 3A of Pt 2 of the Children (Criminal Proceedings) Act 1987. For that reason, the offender is identified only by initials and in these remarks I shall not refer by name to the child's mother or any other relative of his.

Facts 3 I have a comprehensive statement of facts, based largely upon the eyewitness account of the baby's mother and, as to some background incidents, the observations of her brother. The statement of facts is lengthy, and it is not necessary to set it out in full. 4 The child was killed on the night of 6 November 2007. The offender had been in a relationship with his mother for about 6 months, and they were living in a home unit at Blacktown. However, they had known each other much longer than that. Indeed, the mother had known the offender's family all her life. The child was not the offender's; he was the product of an earlier relationship of the mother's. 5 There is evidence that the offender had been generally affectionate towards the child. However, not only did he cause the baby's death in a very violent manner, he had also assaulted him on prior occasions. Some explanation for this paradox is to be found in psychiatric material, to which I shall refer later. I shall deal firstly with those earlier incidents. 6 Early in June 2007, the baby was crying while the offender was changing his nappy. The offender said, "Would you lay still, you little cunt", and slapped him twice across the legs. The mother remonstrated with him, and he promised not to smack the child again. In late July 2007, the offender was teasing the child by putting his bottle near his face and then pulling it away. The mother tried to seize the bottle from the offender but he struck the baby to the back of the head with his open hand, forcing the baby's head to come into contact with the mother's mouth. As a result, she suffered a laceration, and teeth marks and a bruise were observed on the back of the child's head. 7 On 6 August 2007, the offender picked up the baby when he started to cry. He told him to stop crying, then took hold of his shoulders and shook him roughly, causing his head to move back and forth very quickly. On the following day, he was observed again to be holding the baby, who was screaming, and shaking him back and forth. 8 The last, and most significant, of these earlier incidents occurred in the evening of 5 November 2007, that is, the night before the killing. The baby was crying. The offender squeezed him around his neck with both hands and shook him for a significant period of time. He also held him around the throat with one hand, choking him, while he punched him forcefully to the face several times. The mother tried to intervene, but the offender seized her by the hair and pushed her hard enough to propel her over a lounge, causing her to hit her head on a staircase. He then pulled out a knife and threatened to stab her. The child lost consciousness but, fortunately, he was able to revive him. He went upstairs but, when the baby resumed crying, he came back down and again choked him with one hand while he punched him to the face with the other.

The manslaughter 9 I turn, then, to the fatal incident. In the early evening of 6 November 2007, the offender went to a hotel in Blacktown, where he drank and played the poker machines. In the mid evening the mother rang the hotel and asked to speak to the offender. She asked him how long he would be because she wanted to go to bed. It seems that he was in no hurry to leave because he was winning at the poker machines. It was not until after 11pm that he left. 10 When he arrived home, the mother was in the lounge room and the baby was sleeping on a mattress on the lounge room floor. He was drunk, angry and aggressive. He told her in no uncertain terms that he resented her ringing him at the hotel, shouting at her, "Why can't you just fuckin' leave me alone?" 11 The baby awoke and started to cry. The offender started to choke him, saying, "Shut the fuck up, you little cunt." He called him offensive names, such as "little black monkey," "black dog," or "black ape." 12 Again the mother tried to intervene and, again, he produced a knife and threatened to stab her. He lifted the child, holding him around the neck with both hands, and shook him violently while he choked him. As the mother described it, the baby's whole body was shaking "in a floppy motion", and he was having difficulty breathing and making a gurgling noise. 13 The offender then threw the child back onto the mattress and stomped on his chest. The child lay limp, apparently unconscious. The mother rang 000 and requested an ambulance, while the offender tried to resuscitate the baby. When ambulance officers arrived he was not breathing and had no pulse. He was taken to Blacktown Hospital, where he was admitted in the early hours of 7 November. He was transferred to the Children's Hospital at Westmead, where he was found to be brain dead. Death on that basis was formally declared the following day. 14 For a time, both the offender and the mother sought to conceal the true cause of the baby's death from authorities. They claimed that he had suddenly gone limp and stopped breathing, and sought to attribute this to an immunisation administered to him the previous day. A doctor at Blacktown Hospital observed bruising to the baby's periorbital area and swelling of the upper lip, but the offender claimed that he had suffered those injuries through a fall from the stairs two days previously. The mother maintained the story that the baby had not been assaulted, and that he had stopped breathing because of the immunization shot, until February 2008. However, on 12 February she told police what had really happened and demonstrated her account in a walk through interview on 13 February. The offender was charged with the murder of the child on 15 February 2008. 15 Medical evidence, including the post-mortem report of a forensic pathologist, established that the cause of death was hypoxia of the central nervous system, resulting mainly from trauma to the brain and the cervical nervous system and consistent with the shaking and choking of the child described to police by the mother. There was damage to the cervical column, which would have caused breathing to stop and brain damage to commence in a matter of seconds. The pathologist observed other injuries which were consistent with stomping to the chest, and blunt force injury to the head. Examination of the spinal cord disclosed evidence of old haemorrhaging, indicating previous trauma and shaking to the neck.

Victim impact statement 16 I received a victim impact statement from the child's mother. Understandably, she was not present at the sentence proceedings. The statement is expressed simply and directly, and is all the more compelling for that. It is a moving expression of her outrage, pain and grief over the violent death of her baby, and of the serious and enduring effects of this tragedy upon her and her family. 17 I have regard to that statement in accordance with established authority. She has my deepest sympathy, as do all those who have been affected by the untimely death of that unfortunate child.

Subjective case 18 The offender was 32 years old at the time of the offence, and is now 35. He has a brief, but disturbing, criminal history. Importantly, he has killed before. In 2000 he pleaded guilty to manslaughter and his plea was accepted in discharge of an indictment for murder. On this occasion the plea was accepted on the basis of diminished responsibility under s 23A of the Crimes Act 1900 as it stood at the relevant time, that is, his mental responsibility for the killing was substantially impaired by an abnormality of mind. Greg James J sentenced him to imprisonment for 12 years, with a non-parole period of 7 ½ years, to date from 19 December 1996. To preserve the anonymity of the victim in the present case, I shall not disclose the name under which that decision was published or its media neutral reference. 19 The facts of that offence, put shortly, were that the offender shot a man he did not know at a brothel at Kingswood on 17 December 1996. He was affected by alcohol and cannabis at the time. It does not appear that he went to the brothel to avail himself of its services. Why he went there is not entirely clear, and his Honour expressed no finding about it. 20 The premises comprised two units. The deceased was in one of those units, watching television, in the company of a woman, Ms Thomas. The offender demanded to see another woman, but Ms Thomas said that she was in the adjoining unit and that she would not disturb her. The deceased asked the offender his name, whereupon the offender removed a shotgun from a bag he was carrying. He said, "You wanna know me name?", and fired one shot, fatally wounding the deceased. He then pointed the gun at Ms Thomas and demanded that she lie on the floor. That led to a charge of assault, and that charge and a charge of unlawful possession of the weapon were dealt with on a Form 1. 21 His Honour accepted that the shooting was impulsive. There was a body of psychiatric evidence supporting the defence of diminished responsibility. The effect of that material was that the offender was in an abnormal state of mind attributable to a longstanding borderline personality disorder and associated depression. The reports disclosed that the offender had had a difficult background. 22 He was born in Sydney and had nine siblings, brothers and sisters, most of them older than him. He is Aboriginal. His father abused drugs and alcohol, and was prone to violence. Nevertheless, the offender maintained a satisfactory relationship with him. His parents separated, but maintained contact for the sake of the children. 23 The family was dogged by tragedy. When the offender was about 5 years old, one of his brothers was killed in a car accident. One of his sisters, who was pregnant, was shot by her husband. She survived but the unborn child did not. An uncle hanged himself while in police custody. When he was about 11 years old, another of his brothers developed leukaemia and required hospital treatment for several years. That brother was later involved in a car accident, which left him brain damaged. 24 The family moved frequently between various suburbs of Sydney, as well as country centres. The offender's schooling was disrupted, and he did not progress beyond year 9. He had limited employment in unskilled positions, and was otherwise receiving unemployment benefits. 25 During his brother's long hospitalisation for leukaemia, the offender's mother was preoccupied with his care. The offender was left at home with his father, where he had to look after himself and attend to the household tasks. He felt neglected and came to resent his sick brother. His self-esteem and his relationship with others were adversely affected. One of the psychiatrists who examined him, Dr Strum, interviewed his mother and, in a report of 18 August 1999, recorded that she painted a picture of her son "as a young man who finds it difficult to love and believes that nobody loves him." 26 He had a history of depression, self-mutilation and suicidal behaviour. At the age of 14 he began taking drugs and alcohol. In 1995 he formed a relationship with a woman, to whom he was devoted and upon whom he became emotionally dependant. That relationship came to an end in the following year, some months before the shooting. This distressed him greatly, and his abuse of drugs and alcohol escalated. 27 It was against this background that the psychiatrists arrived at their conclusions. It is sufficient to refer to that of Dr Strum, in the report to which I have referred. The doctor explained that people suffering from borderline personality disorder "tend towards depression, suicidal bids, self-mutilation, aggressive outbursts and poor impulse control." This was exacerbated by the offender's loss of his relationship with the woman to whom I have referred, and the doctor believed that he was suicidal at the time of the offence. 28 Dr Strum explained his mental state, and its effect upon his behaviour, in this way: "It often happens that when people are depressed and suicidal, an incident occurs which, to the ordinary person, would not be provocative but which is seen by a depressed and suicidal person as highly provocative. The internalised rage which accompanies depression is then externalised. Impulse control is poor and the person who thwarts or insults or provokes becomes the victim of that rage." 29 There was evidence that the offender's condition and outlook had improved during the period of several years he had spent in custody prior to being sentenced. Dr Skinner, who had been engaged by the Crown, noted that he had been undergoing psychotherapy with a psychiatrist and a psychologist, and that he had been on a regime of medication. She expressed the hope that his personality would "undergo some maturation over the next few years". His Honour considered that the offender's statements to the psychiatrists, and evidence he gave in the sentence proceedings, "showed a real degree of insight and contrition", and saw in this material "a developing prospect of rehabilitation". His Honour noted, however, that his rehabilitation would be endangered if he resorted to drugs and alcohol upon his release. 30 The offender's criminal history contains some other minor entries, which, of themselves, are of no present significance. He was released on parole on 6 July 2005. On 7 November 2007, he was arrested and charged with two summary offences arising from an encounter with police who had attended the Blacktown premises. The only significance of those offences is that they led to the revocation of his parole, effective from that date. He has been in custody since then. The balance of the sentence imposed by Greg James J expired on 18 December 2008, and his custody since then is wholly referable to the present matter. 31 One of the psychiatrists who had examined the offender for the purpose of the earlier proceedings was Dr Bruce Westmore. Dr Westmore saw him again in April of this year, and provided a further report. In his unchallenged account to the doctor, the offender said that he found it difficult to readjust to life in the community after his release on parole. He acknowledged having resumed drinking, sometimes to excess, and occasionally using illicit drugs. 32 Not long after his release, his father was diagnosed with cancer. His mother's vision was impaired. He shouldered the burden of family responsibilities, including the care of his brain-damaged brother. His father was later transferred to palliative care at Westmead Hospital, and it was there that he came into contact with the child's mother and formed his relationship with her. 33 He said that in his newfound relationship with the mother and the child, together with the demands of his own family, he "neglected" himself. He told Dr Westmore that he tried to deal with his responsibilities as best he could, but thought that everything "got too much in the end". He added that he "tried to block it out", that he was not sleeping and that he was taking valium and mersyndol. 34 He maintained that he generally had a good relationship with the child and, as I have said, there is evidence to that effect. However, when asked by Dr Westmore whether he had been aggressive towards the baby before the fatal incident, he denied that he had. That much, of course, was false. He admitted being intoxicated at the time of the incident. He had not used any illegal drugs on that occasion, but had taken valium and mersyndol. 35 In his report, Dr Westmore saw significance in the stressors and psychological distress which the offender had suffered since his release on parole. He expressed the opinion that his "self assessment that he was probably not coping with the various stressors affecting him at that time is likely to be correct …" He noted that the offender's personality difficulties "make him vulnerable to stress", and that his history of impulsive behaviour "appears to have some relevance" to this matter. 36 The doctor observed that people with the offender's personality difficulties "will often mature and develop with the passage of time". He added that there may be "a decrease in his self-harming behaviour, but his vulnerability is likely to continue for some years yet". 37 Dr Westmore concluded: "He requires continuing assistance in relation to his substance and alcohol abuse and he was clearly overusing prescribed medication at the time the current offence arose. Control of those particular difficulties is likely to reduce his risks of reoffending, as will continuing psychological support in relation to his problems with impulse control." 38 In February 2009, while he was in custody, his father died. It seems that he retains the support of his mother and his surviving siblings.

Sentencing 39 It has often been observed that manslaughter embraces a wide variety of human behaviour and a broad spectrum of criminality. Clearly, this case falls into the more serious category of that crime. The offender's attack upon the baby, although not attended by an intention to kill or to inflict really serious harm, was brutal. The child was the most vulnerable of victims, and the offender's relationship to him was effectively that of a stepfather. When the mother sought to protect him, the offender threatened her with a knife. 40 The killing was not an isolated incident. It was the last of a series of assaults upon the child, of escalating severity, over the preceding months. Indeed, on the night before the fatal incident he had inflicted violence of a broadly similar kind upon the baby, causing him to lose consciousness. It is, of course, a seriously aggravating feature that he was on parole at the time in respect of an earlier homicide. 41 That said, I accept that the killing was spontaneous, at a time when the offender had lost control of himself. Consistently with this, he promptly set about trying to revive the child by CPR, while the mother sought help through the emergency telephone line. He was disinhibited by alcohol but, clearly, his behaviour was largely the product of a propensity to impulsive violence characteristic of his personality disorder. This provides some explanation for the killing and for the earlier acts of violence, particularly in the light of the psychological stress to which he was subject over that period. 42 I take into account the offender's difficult and, at times, tragic background. Although that background is somewhat different from that of many Aboriginals from rural areas, examined by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, it raises the considerations set out by the former Chief Judge in that case. It seems that Greg James J took the same view when dealing with the offender for the previous manslaughter. 43 The trial of the offender for murder was scheduled to begin on 8 March 2010. However, several days were set aside to consider the admissibility of some evidence, and a jury was not empanelled at that time. The Crown prosecutor offered to accept a plea of guilty to manslaughter the following day, and the day after that the offender accepted that offer. As a result, a jury was not empanelled and a fairly lengthy trial was averted. I shall allow the offender a modest reduction of sentence for the utilitarian value of his plea. 44 There is no evidence of any expression of remorse by the offender, except so much as might be inherent in the plea of guilty. However, he is also entitled to some credit for the fact that his plea spared the mother and other members of the family from giving evidence in what would undoubtedly have been a distressing trial. In particular, it appears from the cross-examination of the mother at the committal proceedings that it would have been the offender's case that her evidence against him was fabricated, with the implication that she must have been the person responsible for the child's death. 45 Clearly, this is a case in which considerations of retribution, deterrence and the protection of society loom large. I must be guarded about the offender's prospects of rehabilitation, but I do not consider that there are none. Prior to the offence he had been at liberty on parole, without conflict with the law, for almost 2 ½ years. Nevertheless, the hope at the time Greg James J sentenced him that, with maturation and abstinence from drugs and alcohol, he would not re-offend has, tragically, been dashed. I cannot be confident that he would not again resort to violence in a stressful situation, but this makes it all the more important that he have the psychological support and the assistance in relation to substance and alcohol abuse recommended by Dr Westmore. The sentence I pass will provide for a lengthy period of parole eligibility, so as to foster his rehabilitation. 46 Since coming into custody he has been in segregation and, given the nature of his crime, it is likely that he will remain so for some time to come. I take that into account although, in the absence of any evidence as to the conditions of his custody as a result, I cannot give it much weight. 47 As I have said, he has been in custody since 7 November 2007 but was serving the balance of the sentence imposed by Greg James J until 18 December 2008. Nevertheless, counsel for the offender, Mr Hanley, submitted that I should backdate the sentence to the date on which the offender was charged with the murder of the child, 15 February 2008. I am not prepared to do that, but I think that the consideration of totality should be reflected in some measure of concurrency between the sentence I pass and the balance of the term previously imposed. I shall backdate the sentence to 18 June 2008. 48 Mr Hanley supplied me with a schedule of cases of sentence for child manslaughter, acknowledging that they could be of limited assistance only and could not be said to establish a tariff. There are thirteen cases, mostly decisions at first instance, decided over the last 10 years. Sentences range from 6 years with a non-parole period of 3 ½ years: R v Marshall [2003] NSWSC 448, to 10 years with a non-parole period of 6 years and 9 months: R v Compton [2008] NSWSC 204. As one would expect, the objective gravity of the offences dealt with in those cases varies considerably, as do the subjective circumstances of the offenders. However, it appears that none of those offenders was on conditional liberty at the relevant time, let alone for another homicide. 49 An additional case of importance, upon which I invited further submissions from counsel, is R v Hoerler [2004] NSWCCA 184, 147 A Crim R 520. That was a successful Crown appeal against the sentence passed upon the respondent for the manslaughter of a child, to which he had pleaded guilty. On re-sentence, the Court's starting point was imprisonment for 16 years, which was reduced by 10 % for the utilitarian value of the plea to 14 years and 4 months. Applying the statutory ratio, a non-parole period of 10 years and 9 months was fixed. 50 It will be seen that that sentence is significantly above the range disclosed by the other thirteen cases. Moreover, it was passed at a time when the principle of double jeopardy applied to re-sentence after a successful Crown appeal: see the leading judgment of Spigelman CJ at [70] ff. The significance of the decision is that the Chief Justice (with whom RS Hulme and Adams JJ agreed) examined factors bearing upon sentencing for the manslaughter of children by persons in a position of trust and responsibility and considered a number of cases, at first instance and on appeal, although his Honour concluded that they did not disclose a sentencing pattern for crimes of that kind: [47]. 51 In Hoerler, the respondent had a criminal history which included some offences of violence, but nothing of the significance of the present offender's previous conviction for manslaughter. At the time of his offence he was on bail for a charge of burglary, that offence and other offences of a non-violent nature being taken into account by the sentencing judge on a Form 1: R v Hoerler [2003] NSWSC 1187, at [32]. This offence was an isolated incident. However, its objective gravity was significantly greater than the present case. 52 It is unnecessary to set out the detail of it, which is to be found in the judgment of the Chief Justice at [7] - [15]. It is sufficient to say that the child sustained a large number of injuries in the course of what his Honour described, on re-sentence, as a "prolonged, violent attack". He observed that the respondent's conduct included "dragging the body of the baby over a surface, such as a carpet or a sofa, face down causing a number of facial injuries", as well as "the gratuitous cruelty of an almost grotesque character by the application of clamps to both feet of the deceased baby … with sufficient force to break his toes": [66]. The sentencing judge found that the respondent was possibly affected to a significant degree by beer and cannabis at the time. Otherwise, the Chief Justice noted, there was no plausible explanation for the respondent's conduct and nothing that could mitigate his moral culpability: [67] - [68]. 53 The difference between Hoerler and the present case is obvious. Grave as the present offence is, it was not exacerbated by the gratuitous cruelty, fairly described as torture, which characterised that respondent's crime. Nor is it devoid of any explanation arising from the offender's background, his psychological makeup and the circumstances in which he found himself at the relevant time. True it is that the offender's criminal history is much more serious and significant than that of the respondent in Hoerler. Nevertheless, it is clear enough that the primary focus in the re-sentence of that respondent was upon the objective gravity of his crime. 54 Ultimately, the sentence passed in Hoerler was one arrived at in the exercise of the Court's discretion, given the particular circumstances of that case. While the sentence I am about to pass is similar to that in Hoerler, it is the product of my assessment of all the circumstances, objective and subjective, peculiar to the present case. My starting point is imprisonment for 16 years. I shall reduce that by roughly 10% to 14 ½ years, to reflect the utilitarian value of the offender's plea of guilty. I find special circumstances, as the sentence is to be partly cumulative upon the balance of the term imposed by Greg James J, but the adjustment of the proportion between sentence and non-parole period will be minimal. The non-parole period will be 10 ½ years, leaving a period of parole eligibility of 4 years. 55 Accordingly, the offender is sentenced to a non-parole period of 10 years and 6 months, to commence on 18 June 2008 and to expire on 17 December 2018, and a balance of term of 4 years, to commence on 18 December 2018 and to expire on 17 December 2022.

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