Regina v PFC

CASES CITED : R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1

PARTIES : Regina PFC

COUNSEL : Ms J Baly (Crown) Ms S Kluss (Offender)

SOLICITORS : Solicitor for Public Prosecutions A W Simpson & Co

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

JUDGMENT 1 HIS HONOUR: TC, a 7 week old boy, was assaulted by his mother, NLH, on 4 May 2006. His injuries resulted in his death in the early hours of 6 May 2006.

2 PFC was the boy's father. He became aware when he returned home on the afternoon of 4 May that the boy had been assaulted and injured. He did nothing to obtain medical attention until the afternoon of the following day. He has pleaded guilty to manslaughter, acknowledging that he was criminally negligent in failing in his duty of care to obtain medical attention for his son which would have prolonged and perhaps saved his life.

3 By pleading guilty to manslaughter by criminal negligence, the offender has acknowledged that his failure to obtain medical attention for his son warrants criminal punishment because his conduct fell far short of the standard of care which a reasonable person would have exercised in the circumstances; it involved a high risk of death or really serious bodily harm occurring; and the degree of his negligence involved conduct that is so serious that it should be treated as criminal conduct. It is important to acknowledge these matters because the case advanced by him on sentence has been, in effect, to characterise his failure in his duty as involving "errors of judgment".

4 In sentencing him for the offence of manslaughter, the offender has asked that I take into account his guilt in respect of two offences of possessing cannabis leaf. These offences were committed on 13 May and 5 December 2006. The amounts of the drug involved were relatively small. These matters are so comparatively minor that I do not intend to impose any additional punishment for them.

5 Nothing may be published that would identify the deceased child, or his older sister. That includes the names of his parents: s 15A Children (Criminal Proceedings) Act 1987.

6 There is a statement of agreed facts before me from which I have derived the following.

7 NLH and the offender had a daughter, PJC, who was born in early 2005. She had been taken into the care of the Department of Community Services when only a few months old but returned to the care of her parents later that year.

8 The couple took up residence in a vacant house on a property known as "Glen Oval", about 20 kilometres from the township of Bingara, sometime in 2005.

9 TC from born on 19 March 2006 at Bellingen Hospital. NLH, was aged 18 at the time and the offender was aged 24. NLH assumed primary care responsibilities for TC. The offender would sometimes feed him with a bottle. When he was about a month old, NLH noticed that he was not feeding properly and was losing weight. However, TC was not seen by any health care professional after he was born.

10 NLH found it hard to cope with a new born baby and a toddler at home. The couple had very little money and they argued frequently.

11 On Thursday 4 May 2006, the offender left the property, leaving NLH at home with the two children. At some stage TC was lying in his bassinette in the lounge room while PJC was playing and running around. NLH was angry and TC was crying. She took hold of the bassinette and shook it. TC continued to cry. She picked him up and then threw him back into the bassinette. He kept crying. She then pushed the bassinette with both hands, causing it to move across the floor and fall over. She then checked TC and found that he was badly hurt.

12 NLH telephoned the offender at about 4.30pm. He came home and she told him that she could not cope and that she had hurt the baby in her anger. The offender became angry with NLH and told her that they should get medical attention for TC. They argued. No medical attention was sought.

13 TC remained in the lounge room in his bassinette during the night. The offender did not allow NLH to be alone with him. At some stage he tried to feed TC using an eyedropper.

14 The following morning, sometime between 9am and 10am, NLH took TC out of his bassinette. She immediately noticed that his breathing was shallow. She gave him a bath in the kitchen sink in order to try and wake him up. His body was limp and he could not support his head. His eyes were open but rolling back in their sockets.

15 The couple made some telephone calls. The offender spoke with a midwife at Bellingen Hospital where TC had been delivered. He was informed that he should call an ambulance. He did not.

16 When TC's breathing became worse he was put in the car and they set off to drive to Inverell Hospital. They drove through Bingara, stopping to purchase fuel, and passed within 400 metres of Bingara Hospital but continued on.

17 I interpolate here that the offender said in his evidence that he did not act upon the advice of the midwife to call an ambulance because he thought there would be difficulties for the ambulance officers finding the property. He also said that he thought that the ambulance would be despatched from Inverell and would then have to return to the hospital there. He thought that it would be quicker if they took TC directly to Inverell themselves. He explained that he did not take TC to Bingara Hospital because he did not think it was a "proper hospital", although he conceded that it would have had an emergency department. He said this was "a silly thing to do".

18 TC stopped breathing shortly after they had passed through Bingara. A passing car was flagged down by NLH and the driver called an ambulance which came from Bingara Hospital. Meanwhile the offender performed CPR.

19 TC was conveyed by ambulance to Bingara. Dr Fisher examined him and noticed extensive bruising across his forehead. NLH told the doctor that PJC had caused this bruising.

20 TC was then transferred to Tamworth Hospital. A retrieval team arrived to transfer him to the John Hunter Hospital in Newcastle. However, his condition was such that he could not be transferred and he died in the early hours of Saturday 6 May 2006.

21 The offender was interviewed by police that morning. He told officers that PJC had been in TC's cot and that this may have caused the bruising to TC's forehead.

22 An autopsy was performed by Professor Timothy Lyons. He determined the cause of death to be a severe closed head injury as a result of a bilateral fracture to the skull. It was also observed that the baby was markedly malnourished. He had also sustained a number of other injuries including abrasions to his ear, neck, chin and left knee. There were also healing fractures of the 6th and 7th ribs and a healing fracture of the right radius. The rib and wrist fractures had been sustained approximately two weeks prior to death. Professor Lyons was of the opinion that the injuries displayed a pattern of child abuse.

23 The statement of agreed facts includes that blood with the same DNA profile as the deceased's was located on a wall of the lounge room and on items of clothing including a baby's jumpsuit, beanie and singlet.

24 Dr Kieran Moran, consultant paediatrician, was of the opinion that the baby died as a result of blunt trauma to the head and that a severe impact would have been required. It was likely that he would have developed swelling of the brain which led to his death. His chances of survival were greatly diminished by the delay in obtaining medical intervention. Life could have been prolonged, or saved, if he had received medical attention at an earlier time.

25 The offender gave some further evidence concerning some of the matters included in the statement of agreed facts. He conceded that he did nothing to obtain any medical attention for TC, claiming that he did not realise how badly malnourished he was. He claimed that NLH was the primary caregiver and that he spent a lot of time out in the shed smoking cannabis and down at the river fishing. When pressed, however, he conceded that he did change TC's nappies and feed him on occasions. His evidence was in contrast to what he had told police on 6 May 2006 when he had said that he had been alone with TC in the past seven days on many occasions and that he and NLH took turns at looking after him. He then conceded in his evidence that he was aware that TC was not getting adequate food or milk but that he did nothing to get him seen by a doctor.

26 I note from the photographs tendered by the Crown that it would have been readily apparent to anybody who saw TC that he was badly malnourished.

27 As to the mention in the agreed facts of TC's blood being on the lounge room wall and on some clothing items, the offender said that he did not see it and had no knowledge of how it came to be there. The Crown did not assert that the offender was responsible for causing the baby any bodily harm. Why the parties agreed to this fact and included it in the document was not explained.

28 The offender said that he also had no knowledge of the injuries that it was found TC had sustained, the fractured ribs, wrist and various abrasions. This is somewhat surprising given that he did tend to the child on occasions and the rib and wrist fractures were about two weeks old.

29 The offender was cross-examined about his awareness of the need for TC to receive medical attention at the time he arrived home on the afternoon of 4 May 2006 and when NLH told him that she had hurt the baby. At first he claimed that NLH had said "she may've hurt our baby". I note that it is an agreed fact that she told him "she had hurt the baby in her anger". He was asked about the agreed fact that he had said that they should get medical attention for TC. He said that this was prompted by NLH having said that TC was not feeding properly and had not been fed all afternoon. He maintained that he was not aware of the severity of TC's injuries. He repeated that his suggestion that medical attention should be obtained was because TC was not feeding properly and was "sniffly". He then disclosed that he did see a bruise on the child's forehead when he had arrived home. He maintained, however, that he was not aware of the severity of the injuries. He explained, "I didn't take it very seriously because I was so stoned probably".

30 The offender was born in April 1982 and so was aged 24 at the time of the offence.

31 He has a criminal history comprising convictions for offences committed after the one in question but none before. The subsequent offences occurred in the period May to August 2006 and resulted in relatively modest outcomes in the Local Court.

32 He was charged in relation to the present matter and went into custody on 5 December 2006. He was released on bail on 29 May 2007. He remained on bail until he entered the plea of guilty before me on 16 June 2010.

33 Three matters of significance emerge from this. First, at the time of the offence, the offender was a person with no previous convictions and, apart from consuming the drug cannabis, he was otherwise of good character. Secondly, there has been no further criminal behaviour between the end of 2006 and now. Thirdly, I was informed by the Crown Prosecutor that any custodial sentence should be back-dated to 21 December 2009 so as to take into account pre sentence custody.

34 The material before me as to the offender's subjective case comprises oral evidence from himself, his current partner and his mother as well as a report from Dr Christopher Lennings, psychologist, a Pre Sentence Report, a medical report by Dr Gull Herzberg, and a number of testimonials.

35 The offender was the product of a stable upbringing. He is the second of two boys born to his parents. The family remains intact and appears to be one that may be characterised as active, functional and pro-social. His education was completed with the attainment of the Higher School Certificate with reasonably good results. However, it was about this time, at the age of 17, that his life took a turn. He commenced using cannabis and it is reported that there was a change in his personality. He left home after an uncharacteristic volatile argument with his mother and went to live with friends who were also cannabis users. His use of the drug became entrenched from this point.

36 A relationship the offender had been in for about 18 months ceased as a result of his drug related behaviour. He met NLH soon after. They entered into a relationship that was volatile and dysfunctional. He told Dr Lennings that there was a lot of yelling and arguing and some physical violence, although he attributed most of the latter to NLH rather than himself.

37 I have earlier mentioned that PJC was born in early 2005 but was taken into care by the Department of Community Services for a significant part of that year before being returned to them only months before TC was born in March 2006. She was again taken into care following their arrests in December 2006 and remains to this day in foster care.

38 The offender has what was described by Dr Lennings as a "reasonable work history". He has had a variety of largely unskilled jobs and it appears that in the time that he was using cannabis he found it difficult to settle down with employment, the longest he had worked in the one job being for about two years. Recently his work has involved fencing and managing a banana plantation.

39 The offender has a number of medical issues. Dr Herzberg reports that he presented to the Bellingen Healing Centre on numerous occasions since 2002 for upper gastrointestinal symptoms. A diagnosis was made in late 2007 of salicylate sensitivity. The situation was brought under control with dietary modifications. Attached to Dr Herzberg's report is some information concerning the foods that must be avoided. They include most fruits, some vegetables, most spices and certain drinks and confectionery. There appears to be quite a reasonable variety of foods that are permitted, although Dr Herzberg expressed some concern about the ability of the offender to maintain an appropriate diet in a prison environment. The offender himself spoke of having to be selective about the food he ate out of that which was available. He supplemented his food intake with that which he had to purchase himself in weekly buy-ups.

40 The offender also complains of having contracted Ross River Fever, having experienced duodenal ulcers, reflux and a hiatus hernia. He also gave evidence that he has a slipped disc in his lower back which was the cause of pain and discomfort. He is opposed to taking medication. I note that there is no medical report confirming the presence of these conditions but the Crown did not take issue as to their existence.

41 Prison has not been an easy experience. In his first period of custody until being released on bail he was held primarily at Tamworth, Cessnock and Parklea Correctional Centres. In each case he was in a form of protective custody. He gave evidence that he was held in his cell for all but an hour or two a day. He said that he had no access to education or to reading material. Opportunities for exercise were extremely limited. He experienced difficulty with the food that was available, although at that time his sensitivity to salicylate was yet to be diagnosed.

42 Upon his return to custody last month he notified the authorities of his medical problems and has sought attention but he said the response had been rather limited. There has been no modification to the food that is available to him. He has again been held in a form of protective custody in which his contact with other inmates is limited. He attributed this to the nature of the offence for which he was being held, involving as it does the death of a young child. He gave evidence of an incident that occurred about two weeks ago in which he was threatened by another inmate but it does not appear that this had anything to do with him in particular. The inmate apparently made similar threats to other inmates. In any event, the authorities reacted appropriately by moving the offender to another section of the gaol.

43 There was no evidence placed before me as to the circumstances in which the offender will be held if he is to remain in custody except for the offender saying he thought it would be the same as he has experienced to date. As best as I can forecast, it is likely that it will not be as strictly confined as it has been whilst the offender has been an unsentenced inmate, there being more flexibility in the placement of those who have been sentenced. It seems likely, however, that the correctional authorities will still be constrained, to some extent, in his placement. The problem with his dietary requirements will also likely be a continuing challenge. In these respects I will take into account that the conditions of custody for the offender will be more onerous than for the general run of prison inmates and I will also take into account the evidence, which has not been challenged, as to what he has experienced to date.

44 The offender has been in a relationship with Ms Keira Duggan for the past 18 months or so. She met him whilst he was on bail and she was aware from the start of the charges that were then pending against him. Ms Duggan is pregnant and due to give birth in a few weeks time. She gave evidence in which she described the offender as loyal, trustworthy and caring. She said she had no concerns about having a child with him, notwithstanding the nature of the charge for which he now stands for sentence. They plan a life together, although there is a lingering concern about the possible involvement of the Department of Community Services after their child is born. They have a contingency plan that the offender will not live in the same residence if that is necessary to placate any official concern.

45 Ms Duggan's parents, as well as the offender's parents, were present in court during the sentencing hearing and I take this to be some confirmation of the support that he has and will have in the community following his release from custody.

46 Before returning to custody the offender had been visiting PJC on a monthly basis. It is said that he has a good relationship with her. He has been accompanied on these visits by Ms Duggan and his parents. It is of note that the offender has determined not to seek custody of PJC and his parents have decided not to either. These decisions have been based upon an acceptance of the good arrangement that presently exists for PJC with her foster parents and a desire to avoid any prospect of a counterproductive custody battle being waged if NLH or her family sought to respond with an application for custody of PJC themselves.

47 One of the most significant features in the evidence placed before me was that the offender ceased using cannabis at around the time he came into custody in December 2006. His evidence was that he had not touched the drug since. Although there appears to have been some compensation with alcohol, nevertheless I accept that the offender has come to realise how clouded his judgment had been during the time that he was using cannabis. It was not only his evidence but also that of his mother that his thinking has improved dramatically since he has abstained from cannabis. His relationship with Ms Duggan has undoubtedly contributed to this, and perhaps the one has fostered the other.

48 On the evidence before me, it appears that the period in which the offender was using cannabis and was in a relationship with NLH, his life was completely contrary to what it had been before and has been since. Dr Lennings described the relationship with NLH, upon the offender's description of it, as, "a rather bizarre and unusual situation, possibly exacerbated by poor judgment related to cannabis use and possibly exacerbated by his immaturity and young age at the time".

49 I have already mentioned that there are some subjective factors that I must take into account in the offender's favour. There are some others.

50 I accept that the offender is remorseful for his role in the death of his son. He did not acknowledge his criminal responsibility for a long time but, given the technical elements inherent in the crime of manslaughter committed by way of criminal negligence, that is not inconsistent with him acknowledging his moral responsibility. I accept the evidence that he was devastated by the loss of TC. His decisions to terminate his relationship with NLH and to cease use of illicit drugs represent an acknowledgement of the significant roles they played in the tragedy of TC's death.

51 The fact that the offender has returned to the style of life that he would previously have been expected to lead - finding employment, settling into a functional and loving relationship, and appreciating and enjoying the support of family and friends - leads me to conclude that he is unlikely to re-offend and has good prospects of rehabilitation. In making these findings I have placed particular emphasis upon the material in the various testimonials that were tendered on the offender's behalf.

52 There is, however, a need for the offender to be supervised by the Probation and Parole Service once he is returned to the community and I accept the submission made on his behalf that such period of supervision should be for a longer period than would ordinarily be the case. The author of the Pre Sentence Report has suggested that he is suitable for a "medium to high level of intervention by (her) Service". I would expect that such supervision would monitor his abstention from illicit drug use and ensure there is moderation in his use of alcohol. Development of parenting skills is another area that should receive attention. There is also the general need to assist the offender to re-establish his life in the community, after a period in custody that will be attended with the difficulties I have earlier identified.

53 This sentencing exercise is occurring some 3½ years after the offender was arrested and charged and over 4 years after the offence. This delay in the proceedings is something that needs to be considered. I accept that the offender has experienced some anxiety about the proceedings being pending for so long, but there is the countervailing consideration that the time that has elapsed has permitted him to demonstrate a significant process of rehabilitation.

54 As to the utilitarian value of the plea of guilty, counsel for the offender made spirited submissions in support of a contention that a reduction of sentence of around 15 per cent could be allowed and that there was further mitigating matters relating to the chronology of disclosure of evidence upon which the Crown intended to adduce at trial. Reference was made to R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1. The Crown Prosecutor submitted that the reduction for the utilitarian value of the plea, coming as it did on a day after the offender was due to stand trial, should be no more than 10 per cent.

55 The relevant chronology is that the offender was charged with other offences in December 2006 and with manslaughter in November 2008. After a committal hearing in which witnesses were called, he was committed for trial on 1 May 2009. A trial date was fixed for 2 November 2009. That trial date was vacated on the application of NLH. A further trial date was fixed for 24 May 2010. The trial did not commence on that day because NLH was involved in negotiations with the Crown. She then made a statement to police on 25 May 2010 and undertook to give evidence against the offender. She pleaded guilty on 27 May. The offender's trial was further deferred in order to allow time to assimilate the new material, primarily the evidence of NLH. Ultimately he pleaded guilty on 16 June 2010.

56 Nothing in the judgment of Howie J in Borkowski supports the submissions on behalf of the offender. There is no substance in the contention that late disclosure of evidence by the Crown is relevant to the utilitarian value of a plea of guilty. In my view it would be contrary to the statements of principle set out in Borkowski to allow anything other than that for which the Crown contended. In the light of the chronology I have just set out, the utilitarian value of the offender's plea of guilty, coming more than 3 weeks after his trial was due to commence, warrants a reduction in the order of 5 per cent of the sentence I would otherwise have imposed.

57 A related issue is one that is common ground. That is, that the offender's representatives had informed the Crown in the weeks prior to the proposed trial that large parts of the prosecution case were not contested and could be adduced in "short order". This, obviously, did not include the new evidence emanating from NLH. The Crown conceded, appropriately in my view, that the offender was entitled to favourable consideration for his cooperation with authorities in this respect.

58 On 17 June 2010 I sentenced NLH for manslaughter to imprisonment for 4 years 2 months with a non-parole period of 2 years 6 months. I reduced the sentence I would otherwise have imposed by 30 per cent on account of her plea of guilty and her assistance to authorities. I would otherwise have imposed a sentence of 7 years.

59 The case against, and indeed for, NLH was significantly different to the present. For the one thing, the charge of manslaughter was based upon her commission of an unlawful and dangerous act, that is the assault upon TC that is set out in the statement of agreed facts tendered in the present proceedings. A significant part of the case for NLH was that she was a young woman, barely 18 years old, with a newborn baby and a toddler in her care, living in a remote location with no ready support. She was suffering from postnatal depression. There was also a body of evidence directed to establishing that she was the victim of significant domestic violence meted out by the present offender and that he had been physically violent to TC. Obviously the evidence in the present case is different. I made it clear during the course of sentencing submissions that I cannot deal with the offender upon the basis of evidence led in the proceedings concerning NLH and that I must put such evidence completely to one side in my assessment of the appropriate sentence to impose upon him.

60 It was submitted on behalf of the offender that the objective gravity of his offence was "considerably less" than that of NLH's offence. The Crown accepted that his culpability for the death of TC was less. In my view that concession was appropriately and fairly made. The gravity of the offender's conduct lies in his omission to seek prompt medical attention for his baby son, whereas the offence of NLH involved her perpetrating a serious assault upon a defenceless and vulnerable child. The medical evidence is uncertain as to whether TC's life would have been saved if medical attention had been promptly provided. However, the evidence is that his life would have been prolonged, and potentially saved, if the offender had have acted appropriately and in accordance with his parental duty of care. In comparing the gravity of the offences committed by NLH and the offender it should also be borne in mind that there were factors which reduced NLH's moral culpability that do not apply in the present case. These factors were her youth, immaturity and postnatal depression.

61 I also take into account that the injuries to TC inflicted by NLH were not something that the offender foresaw occurring. The evidence is that there were older injuries to TC which were indicative of there having been a pattern of child abuse but there is insufficient evidence for a conclusion to be drawn as to which of the parents were responsible. The offender must be dealt with upon the basis that when he arrived home on the afternoon of 4 May 2006 he was confronted with a situation that was not of his doing but which he was required to deal with. I am satisfied beyond reasonable doubt that he appreciated that there was a significant risk of serious harm befalling the child. He saw that TC was bruised to the forehead. NLH told him that she had hurt the boy in her anger. He agrees that his thought was that medical attention was required. Yet, he did nothing. The only explanation proffered is that his judgment was impaired by cannabis.

62 It was submitted on behalf of the offender that the 7 months that he has spent in custody to date should be sufficient and that I should either impose a sentence that would see his immediate release on parole, or impose a suspended sentence of imprisonment. The Crown Prosecutor submitted that the 7 months the offender has been in custody to date is insufficient. I agree. There is a need to properly reflect the gravity of the offence in both the total sentence and the non-parole period. It is also necessary to give emphasis to the need for general deterrence, retribution, denouncement of the offender's conduct and making him accountable for his actions. In my view a more significant sentence than that which was advocated for the offender is required to meet those purposes of sentencing.

63 Convicted. Taking into account the offences on the Form 1 document, sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 2 years 2 months.

The sentence will date from 21 December 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 20 December 2012. **********

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