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.