REGINA v RHB

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900

Knight v Regina [2006] NSWCCA 292 Olbrich v The Queen (1999) 199 CLR 270 Regina v Berg [2004] NSWCCA 300 Regina v Folbigg [2003] NSWSC 895 Regina v Folbigg [2005] NSWCCA 23 Regina v Harris [2000] NSWCCA 469 CASES CITED : Regina v King [2004] NSWCCA 444 Regina v Merritt [2004] NSWCCA 19 Regina v O'Connell [2004] NSWSC 1120 Regina v Previtera (1997) 94 A Crim R 96 Regina v Twala (CCA, unreported, 4 November 1994) Regina v Veen (No 2) (1988) 164 CLR 465 Regina v Way (2004) 60 NSWLR 168

COUNSEL : Crown: W Robinson QC Offender: C Davenport SC

SOLICITORS : Crown: S Kavanagh Offender: S E O'Connor

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

1 HALL J: The offender has been referred to throughout the proceedings by the initials RHB, in consequence of an order I made pursuant to s.72 of the Uniform Civil Procedure Act 2005 on the first day of the trial on the application of senior counsel for the offender. That order was made for the reason recorded in the transcript in order to prevent disclosure of the name of two persons, given their ages, and the fact that it was anticipated they would be called to give evidence. I will refer to him throughout these remarks on sentence as "the offender". He was charged by way of indictment that:-

(a) On 28 January 1993 at St Helen's Park in the State of New South Wales, he did murder Caleb Paull.

(b) On 16 February 2004 at Peakhurst in the State of New South Wales, he did murder Isaac Schoer. 2 The offender pleaded not guilty to each charge and on 23 October 2007 the jury, whilst returning a verdict of not guilty of murder in respect of the first count, returned a verdict of guilty of manslaughter. In respect of the second count, the jury found the offender guilty of murder. 3 On 23 October 2007, the offender was stood over for sentence. 4 The offender was born on 7 November 1966 and is, accordingly, presently 41 years of age. He was aged 25 years as at the date of the first offence and was aged 37 years as at the date of the second offence. 5 The particular means by which the traumatic injury was inflicted on Caleb and Isaac were not revealed in the course of evidence at the trial. In both cases, each child had, at the relevant times, been in the care of the offender. The offender did not give evidence. There is, accordingly, no evidence from him which explains issues of his intent or motivation. I will, accordingly, in these remarks refer to the evidence including the medical evidence, which shed some light upon how the injuries were sustained. 6 In these remarks, I will refer to both crimes involving the two children, Caleb and Isaac. I will necessarily refer to both counts in respect of the death of each child. The offence of murder in the case of Isaac will necessarily require that I devote a somewhat greater period of time discussing the issue of his death. That is in no way to detract from the tragic manslaughter of Caleb. His death, like Isaac's death, has left an unimaginable trail of grief and tragedy. The loss of life of both Caleb and Isaac is equally tragic. The legal consequences of each, however, raises different issues on sentence. 7 The two offences occurred some 10 years apart. The nature of the injuries sustained was remarkably similar. The jury's verdicts, however, reflect its conclusion that the level of culpability between the two offences differed. In particular, the verdict on the first count concerning the death of Caleb shows that the offender may not be dealt with as having intended to kill Caleb or to do him really serious harm.

(1) Caleb Paull 8 The evidence established that the offender had known the mother of Caleb Paull, Tania Paull, for about six months before they were married on 4 December 1992. The offender and Tania Paull had two children together during the period of their marriage. Caleb was aged 14 months as at the date of his death on 28 January 1993. 9 On 26 January 1993, Australia Day, the child was alone with the offender for a time in the morning and again later in the afternoon. Tania Paull said in evidence that the child had been in his room. The offender had been somewhere in the house. She said he carried the child to her. Prior to that time, he had been well and eaten normally that day. She described his general health as "pretty good". She said that when the child was brought to her it was apparent that Caleb needed medical attention. He was unconscious and was "limp". When leaving for the hospital, the child was struck on the right side of the head when the offender swung open the car door. 10 Whatever the precise sequence of events, it is clear on the evidence which the jury must be taken to have accepted, that:-

(a) Caleb had, prior to the afternoon on 26 January 1993, been in good health.

(b) The accused, at some point on that afternoon when alone with the child, by some means inflicted traumatic injury to the child's head.

(c) That the nature of the trauma involved sufficient force to give rise to a blunt force head injury as described in the medical evidence. 11 The Campbelltown Hospital records dated 26 January 1993 recorded that the child was found to be unwell around 4.00 pm, had a large vomit, went to sleep, woke at 5.30 pm, was reported as appearing to have a problem with vision, vomited several times, was noted as making "funny noises", could barely open his eyes and was barely moving. Examination revealed signs of intra-cranial pressure and that there were spasms of his arms and legs. A CT scan revealed brain swelling and haemorrhage together with a fracture over the right occipital bone, described as a thick bone that does not fracture easily. 12 A post-mortem examination was carried out by Dr Nabila Haikal. Dr Haikal's findings included:-

(a) Multiple bruising to the forehead, temple, scalp, left ear, right occipital scalp, left chin, right submandibular region.

(e) Haemorrhages in the retinal areas of both eyes. 13 Dr Moran's evidence was that the retinal injuries were indicative of a high force injury. Such injuries are known as angular acceleration forces which refer to movement of the brain around itself, pivoting on the brain stem. He said "shaking in small babies, in particular, shaking forces tend to cause rotational angular forces within the head" (t.454). 14 Dr Rodriguez, a neuropathologist, confirmed that the retinal haemorrhages throughout the layers of both eyes were associated with non-accidental injury. He observed on examination of the brain a recent haemorrhage underneath the dura. Lack of oxygen and blood supply had been associated with swelling of the brain. Dr Rodriguez identified the similarities in brain injuries and pathology and in the retinal haemorrhages in the cases of Caleb and Isaac. One of the notable facts of the trial was that there was very little dispute about the observations, diagnoses and conclusions as to internal traumatic (non-accidental) head injury made in both cases.

(2) Isaac Schoer 15 Isaac Schoer was born on 13 February 2002. He was the son of Karen Paull and Dean Schoer. 16 Isaac was born a healthy child. Approximately a year after Isaac's birth, Karen Paull ceased living with Mr Schoer and lived with her parents. She said she and Mr Schoer remained friends and whenever he could Mr Schoer through mutual access arrangements would take the child. 17 Karen Paull, of course, had known the offender as her brother in law since the end of 1992. 18 Karen Paull said in evidence that the relationship between the offender and her sister broke up after Isaac was born, ie, after approximately 2001. After that separation, she continued to see the offender, he having left the previous matrimonial home at Menai, taking up residence in Peakhurst. 19 At some point, Karen Paull entered into an intimate relationship with the offender. 20 Karen Paull said that Isaac was a healthy child prior to him being taken to hospital. He would generally have a daytime sleep around lunch time. He would occasionally wake up at night. She stated that he was an active child and there was no particular occasion requiring the need to seek medical assistance for him. 21 Karen Paull said she and Mr Schoer remained very good friends. When asked whether the offender said anything about her visits to Mr Schoer, she stated "he would just make comments like how much he hated me going over there and spending time with Dean". He made that statement on more than one occasion. Asked as to whether the offender ever made any comments about Isaac in connection with Mr Schoer, Karen Paull said that he would make comments like "I wish this child was mine so you wouldn't have to go over and see Dean". She said that that statement was made on more than one occasion. 22 Karen Paull gave evidence about the relationship between the offender and Isaac. She stated that initially when she commenced to go to the offender's home in Peakhurst, Isaac "loved Ron and then it slowly deteriorated". When asked to describe the deterioration she observed, she said that Isaac started to cry "any time I would drive or start to drive over to Peakhurst" and "he did not like getting picked up by Ron or getting held by him". She observed bad behaviour in the child on several occasions. She said the offender commented upon it by saying something to the effect "I don't understand why he's changed towards me". She said he made that statement because "I would ask him why". 23 Karen Paull stated that when at her parents' home, Isaac would wake and make "like baby noises". When asked as to Isaac's behaviour when he woke up when they were staying at the offender's house, she said "he was very quiet. Wouldn't make very much noise at all". She confirmed that as at 13 February 2004, Isaac was "happy and healthy". 24 At the time of Isaac's death, the offender's two children were aged approximately six and nine years. 25 Karen Paull picked up Isaac from Mr Schoer's home the day after his birthday, 14 February 2004 and returned to the offender's place at Peakhurst at about lunchtime. She said Isaac was perfectly well and she and was sitting with him in the loungeroom during the afternoon and that the offender was laying some carpet in the main bedroom of the house. At about 5.00 pm, she left to go to the shops. She said that, when she was in the loungeroom, Isaac was "playing with the boys" on the floor of the loungeroom. 26 Prior to leaving the house, she said she had a discussion with the offender as to whether she should take Isaac to the shops with her or whether they would all go or if she would just go by herself. She said she thought it would be best "if Isaac would play with his cousins". When she left the house, Isaac was lying on a chair with a bottle of chocolate milk which she had prepared, that being his favourite and "because he hated me to go". She knew that it was likely that he would start crying when she left. She said when this occurred other people were able to settle the child, but when asked as to whether the offender could settle him, she said "no". 27 Karen Paull said she received the call from the offender just as she was driving away from the supermarket. He said, "hurry up and get back. Your son is unconscious. He's blacked out". She said she responded "What happened?" and the offender responded, "I don't know what happened". She said that at the time of his telephone call and during the earlier calls she could not hear the voice of any person other than the offender. In particular, she did not hear in the background either Isaac or the other boys during those calls. 28 Upon returning to the Peakhurst house, the offender was sitting on the lounge holding her son who "was lifeless". Ms Paull said that the offender had said that the child was "throwing up and he went and washed him in the bath and was trying to calm him down and he said he didn't know what happened". 29 After the ambulance arrived, she heard the offender say to the ambulance officers that Isaac had "just blacked out". Isaac was then taken to St George Hospital. 30 After they got to the hospital, she said the doctor said "do you realise this child has a lump on the back of his head?". She had not previously noted it before.

Karen Paull's relationship with the offender 31 Karen Paull said that about two months before Isaac passed away, she spoke to the offender about their relationship. She said "I told him we were going to revert back to being friends". She said the offender didn't like it and responded by saying, "I have no control over you". She said his attitude changed towards her after she said that to him. She said "he was very quiet all the time and looking very grumpy all the time". 32 During that two months, she was seeing Dean Schoer practically every week. She said that the relationship between her and Mr Schoer had become closer over time and that Mr Schoer had wanted to get back with her. She said "I was just thinking about it, but just wasn't quite sure at that stage". She said that she told the offender "I was thinking about it". 33 Ms Paull said that, although Mr Schoer had visited the offender's house before and after his motor accident in 2003, later there was a change, she stating "he wasn't allowed to visit as much", referring to the offender not allowing Mr Schoer to visit as frequently. 34 A month after Isaac's death, she said she asked the offender why she hadn't heard Isaac crying over the phone. He responded to the effect, "he was happy at that stage". She agreed that she then said "I spoke to you twice on the phone and I didn't hear Isaac at all". The offender then said "I know, it doesn't add up, but that's what happened". She said words to the effect "this is pointless". The offender said, "I can't tell you anything else, my only witness has gone. I am telling you the truth". 35 Dr Mobbs, who was a neurosurgery registrar at St George Public Hospital tended to Isaac on the evening of 14 February 2004. When first examined, Isaac had a Glasgow coma score of four. A score of seven or less, by definition, means that a person is in coma. He noted the child had poor respiratory effort and a lower heart rate which he said was a fairly sinister feature and very abnormal for a child of that age, with a pulse rate of 50 adding "so he was in trouble". 36 A CT scan was performed which revealed that the child had an acute subdural bleeding on the right hand side, the bleeding being so acute that there was a shift in the position of the mid-line of his brain within the skull case. Consequently, a decompressive craniotomy was performed to reduce the brain pressure. 37 Dr Mobbs explained that the pattern of injury was consistent with either a blunt force impact or with rotatory sudden jerky movements of the head and neck. He said he could not really say but believed that it was more the latter, rather than a singular one off blunt impact to the head - more from a combination of acceleration/deceleration injuries to the head. He said that the evidence of a chronic haematoma as well as an acute haematoma would lead him to believe that it occurred from more than one event. He, however, could not say when the chronic subdural haemorrhage had occurred, but it would have been within a short period such as weeks. 38 Dr Tzoumi, paediatrician, examined Isaac Shoer on 15 February 2004 in the intensive care unit. The clinical findings were right skull fracture, subdural haematoma, brain swelling, bruises to the skull and retinal haemorrhages. She said that the injuries were consistent "with a severe impact injury to the head, to the back on the right side of the head". She said a severe impact would require "a lot of force to cause a fracture to the skull and the underlying haemorrhage and the surrounding brain injury that we saw in this child, that is the severe end, and at presentation he was very sick but it also indicates severity" (t.253). She said she had seen such injuries in motor vehicle accident cases which provides some idea of the severity involved - that there were large forces. She said that these sort of injuries are not seen from accidents where children tumble over from falls, but from falls from significant heights. 39 In reference to the eye haemorrhages, she said the mechanism required either what is called torsion or tearing. She stated that the backwards and forward motion of which she spoke affecting the brain could be due to shaking but it also could be due to any injury that involved that sort of movement of the head. Shaking was not the only thing that causes those type of haemorrhages.

Evidence: psychological and medical examinations 40 The offender did not give evidence at the hearing on sentence. There was tendered a psychological report on the offender by W John Taylor dated 27 June 2005 (Exhibit 1) a report from Dr William Lucas, consultant psychiatrist dated 16 July 2007 (Exhibit 3) and a report of Dr Dan G Milder, consultant neurologist, dated 25 May 2006 (Exhibit 2). 41 The employment history reveals that he initially obtained employment at the age of 17 years as an apprentice printer and thereafter he has worked primarily in the printing industry. 42 In terms of his health, he gave a history of having suffered epileptic fits since the age of 15 years. He still takes medication and had only had three or four seizures, the last seizure having occurred 10 year ago. 43 Mr Taylor stated that the offender had "stable personality functioning" and there was no indication of any personality or emotional disturbance. 44 In terms of assessed personality characteristics, there was no indication of any impairment with impulse control and no indication of any proneness to experiencing episodes of aggressive behaviour. There were no significant anti-social characteristics. 45 In terms of cognition, Mr Taylor stated that he did not suggest that he had any thought process problems and that he was capable of being introspective and insightful. 46 Mr Taylor did not record any conclusions indicating the existence of any psychological or cognitive problems. 47 Dr Lucas interviewed the offender on 11 April 2007. When asked about the history relevant to the charges, the offender told Dr Lucas that he could not remember anything specific about the day when Caleb Paull was taken to hospital. He gave a short history of Tania Paull giving Caleb to him and the next thing she coming in and saying that Caleb was not right and rushed to hospital. He referred to the incident of the child's head being hit by the car door. 48 The offender gave a more detailed history in relation to the day Isaac Schoer was taken to hospital. In referring to the period after Karen Paull went to the shops later in the afternoon, he gave a history as follows:- "[RHB] said Isaac was whinging as he always did when his mother was away. She had put him on the lounge where he was resting with a bottle while she when to the shop. [RHB] thinks that his sons [named] were playing with Isaac. Isaac continued to be miserable and whining, so they took him to see a dog and rabbit in the yard, but this did not help. [RHB] was sitting on the lounge and Isaac was standing in front of him. He became red in the face and angry and screamed for his mother. He went blue in the face, put his arms up and locked his fists and fell backwards. He did not strike the floor as [RHB] caught him. Isaac began to vomit. [RHB] took him to the bathroom, telephoned the ambulance and also Karen Paull who hurried back." (pp.5 to 6) 49 The offender told Dr Lucas that he understood from the medical evidence the severity of the injuries "but did not know how to explain them. However, he was there and saw what happened …" (p.6). 50 Dr Lucas concluded that there were no signs of psychiatric disorder evident and no indications of cognitive dysfunction. He did not relate his epilepsy to the events in question or describe himself as losing control at the relevant times. Dr Lucas concluded that there was no diagnosis of mood or psychotic disorder and no history suggesting personality disorder.

Prior criminal history 51 The offender's criminal history (Exhibit A) records only two offences said to have occurred on 24 November 1994, the first being an improper use of telecommunications and the second an offence of making a false statement with intent to cause fear. There was no criminal history indicating any criminal violence associated with the offender.

Crown submissions: Count 1: manslaughter 52 The offender, having been found guilty of manslaughter on Count 1, the jury must be taken to have determined that he occasioned the death of Caleb by reason of his acts in having inflicted unlawful and dangerous acts upon a 14 month old child. The medical evidence permits the inference to be drawn that the force involved in occasioning blunt head injury to Caleb was a significant force or sufficient to cause rotational head injury or injury caused by impact. The offender's motive is unknown. There was, presumably, an element of uncontrolled anger by the offender. 53 The mechanisms of injury were the same or similar to those that caused injury to Isaac. The jury's finding of manslaughter, of course, necessarily means that the jury were not satisfied that the offender acted with the intent required for the offence of murder, namely, an intention to kill or cause grievous bodily harm. Accordingly, the objective seriousness of the offence involving Caleb, though significant, of course, cannot and does not equate to the objective seriousness of the offence of murder. 54 It is also necessary in sentencing for two offences to have regard to matters of totality and considerations of concurrency and accumulation of sentences imposed.

Crown submissions: Count 2: murder 55 The Crown's submission was that in relation to the jury's verdict of guilty of murder in respect of Isaac, that the objective culpability associated with that defence is such as would cause me to consider the life sentence provisions of the legislation. 56 There are a number of provisions in the Crimes (Sentencing Procedure) Act 1999 relevant to sentencing on Count 2. I will refer to the Act in these remarks as the "Sentencing Procedure Act". Section 61 provides:- "61. Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. … (3) Nothing in sub-section (1) affects s.21(1)." 57 The provisions of s.19A of the Crimes Act 1900 makes provision for the imposition of a term of imprisonment for life on a person who commits the crime of murder. However, s.19A(3) provides that nothing in that section effects the operation of s.21(1) of the Sentencing Procedure Act (which authorises the passing of a lesser sentence than imprisonment for life). 58 It is sufficient also to note the general power to reduce penalties provided for in s.21 of the Sentencing Procedure Act. 59 These provisions have been the subject of analysis by the Court of Criminal Appeal in Regina v Harris [2000] NSWCCA 469 and in Regina v Merritt [2004] NSWCCA 19. The provisions have been more recently considered by that Court in Knight v Regina [2006] NSWCCA 292. 60 In support of the submission made by the Crown in respect of the life sentence provisions, a number of matters were relied upon including the following:-

(a) The two homicides in this case were separated by 11 years.

(b) The offender had been spared prosecution in respect of the first homicide for some 11 years.

(c) The overwhelming vulnerability of the victims arises by virtue of their age, which it is said was on a par with the circumstances in the case of Merritt (supra).

(d) A distinguishing feature is that in Merritt the offender acted against his own children consequent upon feelings of failure he had towards his children, a circumstance which does not arise in the present case.

(e) There was a different familial relationship between the offender in the position of a step-father than in the case of a natural parent and his acts occasioning the death of the infants were said to be hostile acts "both directly towards the immediate infant victims and also their families" .

(f) There was an abuse of a position of trust or authority, an aggravating circumstance within s.21A(2)(k) of the Sentencing Procedure Act . The victims in the present case were always the children of other persons and the abuse of trust or authority goes beyond the natural parent situation of authority.

(g) The subjective circumstances of the case as not being favourable to him, it was contended, on a relative basis as judged against the case of Merritt . The offender is not a young person and there has been no plea of guilty in this case. There has been no feature of remorse or contrition exhibited whatsoever and no acknowledgment by the offender of any participation by him in the death of the children.

(h) The offender was not suffering from any psychiatric illness or disability or disturbance, a fact confirmed by the psychologists' reports.

(i) In relation to the issue of future dangerousness, no assessment has been made. Accepting the jury's verdicts, it was submitted that the fact is that the offender has killed two children, 11 years apart in circumstances whereby it would appear to have suited some purpose of his that has not been spelled out in the course of the present proceedings. Accordingly, it was submitted, the Court would exercise the utmost caution in relation to the topic of future dangerousness. It was submitted that the Court could not conclude that the offender was not an ongoing danger to the community and, in this respect, regard should be had to the 11 year gap between the two incidents, the circumstances in which the deaths arose and the fact that the Court has not been able to gain any understanding of the precise motivation in relation to the deaths of the children.

Submissions on behalf of the offender 61 Ms Davenport SC acknowledged that, having regard to the jury findings, she did not suggest that the moral culpability of the offender was not high and did not involve an abuse of trust. She acknowledged, of course, that the victims were amongst the most vulnerable in our society. 62 The fundamental submission made on behalf of the offender was that, in all the circumstances of the case, it was open to me to impose a determinate sentence, albeit a lengthy one, as an available sentencing option. In that respect, Ms Davenport submitted that a lengthy term of imprisonment would "overcome the problem of future dangerousness because whatever future dangerousness there may be, it is clear that [RHB], in terms of the offences he has been found guilty of, is not dangerous generally because he has not criminal history of violence". 63 In support of the submission, reference was made to the evidence adduced at trial from Tania Paull and Karen Paull that the offender had not otherwise been a violent person. In particular, in dealing with his own children, he had not been physically violent with them, even to the extent of not having chastised them. The violence in respect of the two children who were the victims, it was submitted, constituted a very unusual pattern. 64 It was submitted for the offender that the Crown had the onus of establishing beyond reasonable doubt the matters referred to in s.61(1) of the Sentencing Procedure Act, that is, establishing the matters that make this case one in the worst category of offence lay with the Crown. 65 It was submitted:-

(a) That in Harris (supra) there was a high element of general dangerousness, being a case involving three disparate victims in their own homes and a high element of dangerousness to the community generally because of the circumstances of the killings.

(b) Since the relevant legislation was introduced, the pattern of sentencing indicates that life sentences are generally imposed in cases falling in particular categories such as contract killings, serial killings, random killings, where the victim is not known to the perpetrator and where there is dangerousness in terms of the behaviour of the offender.

(c) Although there was no blood relationship between the offender and Caleb, there was a family relationship, insofar as the child was a child of the household, less so in the case of Isaac. There was a relationship with Isaac, in that he was the cousin of his sons. It was also contended it was a family-type relationship, in the sense that Isaac visited on a regular basis, staying in his home. 66 The submission was that life sentences should fall outside the common pattern of sentencing for offences involving persons who are the natural parents or in a similar relationship. 67 Ms Davenport acknowledged that, whilst in one respect the gap of 11 years between the commission of the offences went against the offender, in another sense it did not, in that it showed that between the two incidents he had displayed no violence in any other aspect of his life either towards his own children or any other persons. 68 Ms Davenport acknowledged that it was unusual to have two offences committed with a long gap between them coming on for sentence together. It was necessary, she submitted, that they be looked at in a cumulative sense and in assessing moral culpability in terms of the offending conduct. 69 The reports tendered on the hearing, it was accepted, did not address issues of dangerousness by reason of the fact that the offender has not acknowledged his responsibility. It was also accepted that there was, accordingly, no evidence of contrition or remorse. 70 Ms Davenport referred to and relied upon remarks made by Barr J in Regina v Folbigg [2003] NSWSC 895 and the observations of this Court on appeal: Regina v Folbigg [2005] NSWCCA 23 at [174] as to unacceptable speculation in relation to the issue of dangerousness, where one is dealing with "distant future probabilities" and the risk of introducing an impermissible element of mere preventative detention for crimes which it is feared, in an incohate sense, the offender might commit in the distant future. 71 On the basis that a determinate sentence was imposed, Ms Davenport properly conceded that she would not be arguing against the application of the standard non-parole period of 20 years and acknowledging the reality that there would have to be some accumulation to some extent with the sentence to be imposed for the offence of manslaughter. It was emphasised that the offender is presently 41 years of age and that, on that basis, the question of parole would not arise until he was well into his 60s. Allowance should also be made, Ms Davenport argued, for the fact, in terms of dangerousness, that people do change as they mature. Reference was also made to the fact that it is highly unlikely that he would become involved in a situation of having a relationship with a woman who had a young child. 72 Finally, reference was made to the fact that the offender is in a special protection area of Parklea Prison and when transferred he will go into a non-association environment emphasising the severity associated with those conditions. 73 In relation to the onerous circumstances arising from strict protection conditions, Ms Davenport supplied an article entitled "Protective Custody and Hardship in Prison". That article refers to the reasons for strict protection.

Relevant sentencing principles 74 I will firstly deal with some general principles in relation to the circumstances that may attract the maximum penalty of life imprisonment. I will then deal with issues of culpability, potential for dangerousness, prospects of rehabilitation and any other matters attracting leniency. 75 The following relevant principles apply in relation to the application of s.61(1) of the Sentencing Procedure Act:-

(a) The burden of proving that a case falls within s.61(1) of the Act rests on the Crown and the standard of proof of such proof is beyond reasonable doubt: Merritt (supra) at [35] and Olbrich v The Queen (1999) 199 CLR 270.

(b) The Court is to impose a sentence of imprisonment for life on a person convicted of murder if it is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. It is accepted that punishment of that kind is reserved for cases which may properly be characterised as falling within the worst category of cases.

(c) The worst category of case of murder has been defined as including those cases where the particular features are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed): Regina v Twala (CCA, unreported, 4 November 1994, per Wood J (as he then was). The term "heinousness" has been defined and it is unnecessary here to reproduce what has been said in that respect, although I do, of course, have full regard to the meaning of that term in the present matter.

(d) Where there are multiple killings, that circumstance can be taken into account when assessing the level of the offender's culpability in the application of s.61(1).

(e) The primary focus of the legislation is directed towards how extreme the offender's culpability is: Merritt (supra) at [52]. Emphasis has been given to the importance of this factor and for the need for the Court to find features of very great heinousness along with the absence of any facts mitigating the seriousness of the crime. Accordingly, the assessment of culpability of an offender has to be based on the circumstances in which the offence was committed.

(f) The assessing court puts aside matters such as remorse, the prospects of rehabilitation and other subjective features.

(g) There is, in effect, a two-stage process. The Court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. If it is, the Court must determine whether the subjective evidence displaces the prima facie need for the maximum penalty to be imposed.

(h) Whilst the combined effect of the matters referred to in s.61(1) is the matter for attention in determining whether a life sentence is required, the absence of any finding of future dangerousness would not rule out an application of the section. The maximum penalty, in other words, is not reserved for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or where there is no chance of rehabilitation.

(i) The maximum penalty may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such punishment.

(j) The mental state of the offender is always of considerable relevance in the assessment of the degree of objective culpability involved in the offence or offences. 76 In Merritt (supra), the Court stated that the murder by their natural father of three very young, vulnerable, innocent and entirely defenceless children, while they were asleep, involved the grossest breach of trust imaginable. It was stated that left unexplained or unmitigated by circumstances personal to the offender which might provide some reason for his resort to such extreme violence or where accompanied by deliberate cruelty and suffering to the children, such a case would properly fall within the ambit of s.61(1) and, as such, justify life sentences. 77 In Merritt (at [71]) it was observed that the offender's decision to kill the children could only be categorised:- "… as having been self-centred and extremely selfish. It means that the offences, which obviously involved willed and intentional acts of multiple murder, were gravely serious from an objective point of view." 78 However, the Court in Merritt considered the objective criminality to be tempered by a number of circumstances. Those included:-

(a) The fact that the acts were clearly neither planned nor expected, but were spontaneous and impulsive.

(b) The fact that they did not occur against the background of abuse or violence and they were unaccompanied by any act or acts which involved the infliction of gratuitous cruelty.

(c) The fact that they were not carried out for the sexual gratification of the applicant.

Culpability 79 The assessment of the culpability of the offender must be directed to the circumstances surrounding or causally connected with the offence, leaving aside subjective matters (eg, remorse, of which there is no evidence in this case, rehabilitation prospects etc). This requires attention to be given to the blameworthiness of the person standing for sentence. 80 In the offender's case, the objective facts include:-

(b) The fact that Isaac was in the care of the offender at the time he inflicted injury, thereby constituting a gross breach of trust.

(c) The fact, as the medical evidence established, that a severe force was applied by the offender sufficient to occasion extreme forces occasioning closed head injuries.

(d) The fact that he had previously, by an unlawful and dangerous act, inflicted traumatic closed head injuries on Caleb and knew from his assault upon Caleb what the consequences had been and that such a result could again occur. 81 There are in this case in determining objective culpability no facts mitigating the seriousness of the murder of Isaac.

82 In relation to the murder of Isaac Schoer, the matter at the forefront of the assessment in relation to the offender's culpability is, of course, the fact that the victim, being a two year old child left in his custody, was, at such a young age, so vulnerable and defenceless. 83 In the assessment of culpability, is the fact that the offender has not explained to police or to this Court the circumstances that led to his infliction of blunt head injury to the child. There is evidence of surrounding circumstances in which that offence occurred leading up to the time when Isaac's mother left to go shopping. Karen Paull's evidence indicated that, at least up to approximately 5.00 pm on that day, the home environment was nothing other than completely normal. She had been in the company of the children in the loungeroom whilst they played and the offender had busied himself to the carpet-laying task. There was no evidence of any incident having arisen which provoked anger or aggression in the offender. Insofar as there is any information, it is limited to the recorded history to which I have already referred recorded in the notes of the hospital (see paragraph [48] above) which refer to the offender taking hold of Isaac once he commenced to cry. 84 However, the recorded medical history is not evidence in these proceedings. The relevance of the apparently normal events throughout the afternoon may reflect upon whether or not the offence was part of a planned activity, a matter to be taken into account in accordance with s.21A(2)(n) of the Sentencing Procedure Act and generally in the assessment of the offender's culpability. The Crown did not submit that it was a planned offence. 85 The events of the afternoon can, at best, only be indirect evidence in support of the proposition that there was no evident premeditation prior to the immediate events preceding the receipt of infliction of injury. As was observed in Regina v O'Connell [2004] NSWSC 1120 by Davidson AJ at [70], who was dealing with a submission that there was no evidence that the offence in that case was premeditated, observed much, of course, depends upon what is meant by that term. His Honour there stated that it does not necessarily involve long and careful planning. 86 In dealing with the question of the offender's intention to kill or to cause grievous bodily harm to Isaac inherent in the jury's finding, plainly at some stage he formed the intent to do one or the other. The absence of evidence was to motive does not enable one to discern what was the offender's precise intent. Whether during the course of that afternoon or closer to the point of infliction of the injury is unknown, although it may well have been that he formed the intent at some stage later on the day in question. 87 I do not leave out of account the evidence given by Karen Paull to the effect that, some two months before, the offender exhibited signs of displeasure at her suggestion the relationship should revert to a non-intimate one and at her practice of taking the child on a regular basis to Mr Schoer. Her evidence also provided some context insofar as his statements to her indicated he was not happy for her to visit Mr Schoer and that he wished Isaac had been his child so that ongoing contact between the child and his father would be a reality. The evidence, however, in this respect, does not permit a finding to be made to the requisite standard that there was any sense of long brooding or resentment that itself was causally related to the infliction of injury upon Isaac Schoer. 88 The evidence enables a conclusion to be drawn, at least to the extent that the offender's act in inflicting injury manifest uncontrolled aggression. But what psychological dynamic in the offender as relationship to any external factor whether related to Isaac or Isaac's mother, has not been established on the evidence. 89 Whether the jury's conclusion be that the offender intended to kill or intended to cause grievous bodily harm to Isaac when the offence occurred, involving a two year old as it did, the intent to do either may be considered as one involving an equally high level of culpability. 90 I have concluded that, whilst the level of culpability of the offender in relation to the offence of murder is high, I do not consider that, having examined the circumstances of the offence on Count 2 at length, a sentence of imprisonment for life should be imposed under s.61(1) of the Sentencing Procedure Act. 91 A worst case may be seen illustrated by the facts in Harris (supra). The facts of that case involving three counts of murder involved killings involved victims who were aged, disadvantaged or physically slight and easy prey, the killing of one involved a betrayal of trust, all occurred within the space of a month, each involved considerable callousness. The second and third killings were particularly heinous, callous and reprehensible. The objective seriousness of all the offences and the culpability of the offender in Harris was classed as particularly extreme. 92 In the assessment in the present case, I have throughout kept at the forefront the fact that the two victims were children of tender age. It is in the nature of mankind that the vulnerable in our society are deserving of and do receive protection. That fact is reflected in s.21A of the Sentencing Procedure Act that classes as an aggravating factor offences against the "very young" and the "very old". Persons within those classes are vulnerable and the fact that both Caleb and Isaac were so young and, therefore, so vulnerable is a matter to which I have had regard, along with the other matters to which I have referred in determining the appropriate sentence for the offence of manslaughter, the offence of murder and determining the structure of those sentences having regard to the principles of totality and accumulation. 93 As earlier noted, imprisonment for life is reserved for cases tha may properly be described as a worst category. For the benefit of those unfamiliar with the gradations which the law recognises, I observe that premeditated murders committed simply for financial gain or carried out with great cruelty or which involve, not one, but multiple murders are the type of case or cases that may fall within the worst category. The offence in this case on Count 2 did not, as I have stated, on my assessment, fall into that particular category and is to be judged against the appropriate, if not, imprecise, standards of criminality. 94 The Victim Impact Statement of Tania Paull dated 20 November 2007, the statement of Karen Paull dated 27 November 2007 and the statement of Dean Schoer dated 30 November 2007 were read to the Court. I have read those statements as well as the statement of Colleen Schoer dated 20 November 2007. 95 In doing so, I have had regard to the provisions of the Sentencing Procedure Act and the decisions of the Court of Criminal Appeal in Regina v Previtera (1997) 94 A Crim R 96; Regina v Berg [2004] NSWCCA 300 at [43] and Regina v King [2004] NSWCCA 444 at [171]. In accordance with established principle, I must approach my sentencing task objectively and dispassionately. However, in saying that, I do not in any way leave out of account that the dominating feature of any conviction for manslaughter and for murder is that the person convicted has caused the death of another human being with the sad and often traumatic consequences that commonly flow from such an event. Each of the statements to which I have referred express in clear and dignified terms the pain and trauma that has resulted from the death of Caleb Paull and Isaac Schoer.

Potential for dangerousness 96 There is no psychiatric evidence placed before me which would assist with an assessment of the offender's potential for dangerousness in the future. That, of course, is a matter of relevance in relation to the need to have regard to the protection of the community: Regina v Veen (No 2) (1988) 164 CLR 465. This is a case in which it is proper to look to the circumstances of the offences, so far as they throw light on the offender's dangerousness. I have previously referred to and I accept Ms Davenport's submissions in this regard to the effect that the offender's dangerousness is to be considered in the more confined or restricted context to which she referred rather than dangerousness in the general sense of the term.

Standard non-parole period 97 In respect of the offence of murder committed on or after 1 February 2003, Division 1A of Part 4 of the Sentencing Procedure Act prescribes that the standard non-parole period is, as specified in the Table to that Division, a period of 20 years. The offence of murder having been committed in this case after 1 February 2003, s.51A of the Division applies to this case. That period of 20 years is stated to represent the non-parole period for an offence that falls in the middle of the range of objective seriousness for such offences. Whether a longer or shorter period than that is set depends upon the application of matters in s.21A of the Sentencing Procedure Act which identify aggravating and mitigating circumstances. 98 The standard non-parole period provisions are to be considered in light of other provisions in the Act including s.3A which stated the multiplicity of purposes of sentencing:- "s.3A The purposes for which a court may impose a sentence on an offender are as follows:- (a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from commiting similar offences,

(e) to make the offender accountable for his or her actions,

(g) to recognise the harm done to the victim of the crime and the community." 99 The standard non-parole period of 20 years provides a reference point or benchmark within the sentencing spectrum for the offence of murder and in itself employs a further reference point, being a point in the middle of the range of objective seriousness for the offence. 100 The application of the standard non-parole period was discussed by this Court in Regina v Way (2004) 60 NSWLR 168, in particular at 183-193. 101 I have had regard to all the circumstances to which I have referred in determining whether a lesser or greater non-parole period should be applied to this case. I have concluded that the standard non-parole period to which I have referred should be applied. 102 In determining whether there are reasons for not imposing the standard non-parole period, I have had regard to the objective seriousness of the offence in the light of the facts which relate directly to its commission and to the circumstances of aggravation and of mitigation as listed in s.21A(2) and (3). In relation to the objective circumstances, it is apparent that the standard non-parole period of 20 years does apply to this case. The factors to be taken into account in that respect include the fact that the victim of the offence was a very young child who was vulnerable and that the offender abused his position of trust and authority in relation to the victim. They also include the factual circumstances surrounding the offence and the other matters to which I have referred including the issue of premeditation and the subjective factors, as earlier discussed. 103 In terms of the subjective circumstances, I have had regard to the fact that the offender did not have a significant criminal history prior to the first offence, that he did not have a history of violence before or between the first and second offences and that he had remained in employment since leaving school. There is, as I have previously stated, no factor identified in the psychological reports or the medical report which identifies any disability or disadvantage bearing upon the assessment of his conduct in relation to the offences. 104 In my opinion, in respect of the murder of Isaac Schoer, I consider an overall sentence entailing a head sentence of 30 years and a non-parole of 20 years to be indicated. This sentence, in respect of an offence occurring approximately 11 years after the first, should be wholly accumulated upon the non-parole period of four years and six months to be imposed in respect of the offence of manslaughter of Caleb Paull. 105 I propose to impose sentences which will produce an effective head sentence of 30 years' imprisonment and a non-parole period of 24 years and six months. 106 The non-parole period proposed in respect of the offence of murder is 80% of the proposed head sentence rather than the statutory norm of 66%. I consider that a somewhat longer than normal non-parole period is justified in order to reflect the reasonable requirements overall of the case having, in particular, regard to the matters bearing upon the offender's culpability including the finding made in respect of the limited future dangerousness of the offender referred to earlier. I do not consider that this is a case for a finding of special circumstances and no such finding was sought. 107 In respect of the offence of manslaughter of Caleb Paull, I sentence you to a non-parole period of four years and six months commencing on 6 May 2005 and to expire on 5 November 2009 with a balance of term of one year and six months to expire on 5 May 2011. 108 In respect of the offence of murder of Isaac Schoer, I sentence you to a non-parole period of 20 years to commence on 6 November 2009 and to expire on 5 November 2029 with a balance of term of 10 years to expire on 5 November 2039.

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