Ross v R

Court of Criminal Appeal (NSW)|2016-07-26|Before: Hoeben CJ, Hall J, Bellew J, Rothman J

Judgment

HOEBEN CJ at CL: I agree with Hall J.
HALL J: The applicant, Warren James Ross, makes application for leave to appeal in respect of a sentence of imprisonment imposed on him by Rothman J on 30 May 2014.
The applicant was charged on indictment that on or about 27 August 2011, at Watanobbi, he did murder Tanilla Opal Warrick-Deaves, the daughter of his former partner.
The applicant entered a not guilty plea.
A jury trial commenced on 28 October 2013. On 5 December 2013 the jury returned a verdict of guilty of murder.
On 30 May 2014, the applicant was sentenced to a term of imprisonment with a non-parole period of 30 years to commence on 27 September 2011 and to conclude on 26 September 2041 with a parole period of 10 years to expire on 26 September 2051.

Grounds of Appeal

On 11 March 2016, the application for leave to appeal was filed. It contained the following grounds of appeal: (1) The trial judge erred in finding that the offence was "well-above the mid-range of offences of murder and approaching the worst case of murder". (2)(a) The trial judge failed to give any weight to the applicant's onerous gaol conditions, alternatively; 1. (2)(b) The trial judge failed to accord the applicant procedural fairness in not indicating that he did not accept the content of the applicant's "Affidavit of Warren Ross" (Exhibit 1). 2. (3) The sentence was manifestly excessive.
In the Applicant's Submissions in Reply dated 24 July 2016, Mr Bruce SC, who appeared in this Court on the applicant's behalf, stated that Ground 2(b) was abandoned: at [7].

The Sentence Hearing

At the sentence hearing the Crown tendered and there was admitted the following materials on sentence:

Report of Dr Yvonne Skinner dated 25 February 2014;
Report of Dr Yvonne Skinner dated 1 May 2014;
Report of Dr Terrence Donald dated 20 October 2013;
Supplementary report of Dr Terrence Donald;
Report of Sarah Dillane dated 25 February 2014;
Victim impact statement of Adrian Warwick;
Victim impact statement of Asana Deaves;
Victim impact statement of Tandara Warrick-Deaves;
Criminal antecedents of Warren Ross; and
Custodial history of Warren Ross.

On behalf of the applicant the following documents were tendered and admitted:

Document headed "affidavit by Warren Ross" dated 09/05/14 and certificate from the Salvation Army dated 27/08/12: Exhibit 1.
Report from Dr Bruce Westmore, Forensic Psychiatrist dated 3 May 2014: Exhibit 2.

The sentencing judge in his Remarks on Sentence set out a detailed account of the relevant facts. At the hearing in this Court it was accepted that his Honour's recitation of the facts constituted an accurate summary of the evidence at the trial.
The sentencing judge observed that Tanilla Warrick-Deaves was the daughter of the applicant's partner. She was aged two years and eight months at the time of her death. His Honour then set out the following facts: 11. The offender formed a relationship with Tanilla's mother and moved into her house some two months prior to the period during which the injuries were inflicted. The mother, Ms Deaves, had three children, the youngest of whom was the deceased. The evidence before the Court, including material adduced from the offender, referred to the relationship between the offender and the three children and the fact that the deceased, and her sisters, referred to the offender as "Daddy"; a term of which the offender was particularly proud. 12 In the short time that the offender lived with Ms Deaves and her three children, he assumed the care of the deceased and acted in the role of parent. 13 In the course of the trial, the Crown adduced tendency evidence relating to the offender's treatment of the deceased in order to prove that he had a tendency to conduct himself in a particular way and had a state of mind relevant to proving that the fatal injuries were inflicted with murderous intent. 14 The tendency evidence included the abuse of Tanilla in the street shortly after the offender commenced cohabiting with the family. It also included an incident a month before the infliction of the fatal injuries in which the neighbours heard the offender whipping Tanilla with a belt or rod. The tendency evidence was compelling. 15 That evidence, whilst available to the Crown to prove the tendency of the offender to act in a particular way or have a state of mind, is not evidence of the conduct directly associated with the infliction of the fatal injuries and cannot be (and is not) taken into account in assessing the objective seriousness of the offence. 16 There are other incidents that establish the context in which the offence was committed, although not all are relevant in assessing the objective circumstances of the offence for sentencing purposes. Evidence was adduced, from an independent witness, of the offender punishing Tanilla. This punishment included forcing her to run laps from one end of a lounge/living area to the other end and back over a significant period of time. At the time the child had a bandaged hand and the offender informed this witness that the child had dropped a toolbox on her hand. 17 The toolbox was tendered in evidence. It is heavy. It remains heavy whether or not it contained a metal head mallet, the inclusion of which created a minor controversy. I do not accept that the child would have picked up that toolbox. She did not drop it on her own hand. That issue is largely irrelevant to anything the Court must now decide. 18 The aspect of this witness' evidence that is relevant is the exchange between them in which the offender said: "I can make her scream, watch this." (Transcript Page 217) And at a later stage: "Watch me make her scream. I'll tell her I'm getting the belt." (Transcript Page 219) At that point the offender told the child he was getting the belt and she screamed. 19 The foregoing is probative of the state of mind of the offender when punishing Tanilla. When the witness rebuked the offender that the punishment was "a bit harsh for the little three year old" his response was that "she deserves it, for not behaving herself." (Transcript 219) 20 Tanilla was not yet three at the time that these incidents were occurring. 21 By the end of August 2011, the offender was engaged in a process that was intended to toilet train Tanilla. That process included punishment of the kind already described, namely, the running of laps of the lounge room, hitting the child with objects, including an electric cord, forcing the child to stand in one place for extended periods and whipping the child (to the extent that may be different from the foregoing) with a cord or belt. These punishments were inflicted by the offender. 22 The offender submitted that I should not accept fully the evidence of Ms Deaves, the mother of the deceased who gave evidence of these episodes. During the course of the trial, repeated in directions, I warned the jury in relation to their acceptance of Ms Deaves' evidence because of the risk that she had minimised her involvement in the offences in question and her involvement in the offence itself together with other factors such as reasons to lie about the offender and the inconsistent statements she gave to police. Nevertheless, the jury, in my view correctly, accepted her evidence, at least in relevant respects. As do I. 23 In the period leading up to when the fatal injuries were inflicted, Ms Deaves attested to the fact that Warren Ross was fine about Tanilla soiling herself at first but later became annoyed and very angry about it (Transcript 482). 24 In the days leading to her death, the offender was punishing Tanilla in the pattern of the previous punishments, namely the running of laps and hitting her with a belt or cord (Transcript 496). Ms Deaves tried to stop him and the offender ceased for a short time. 25 After smoking some marijuana, he again required Tanilla to run laps. Ms Deaves went to the kitchen to cook dinner and while there Tanilla had an accident, soiling herself. The offender took Tanilla to the bathroom and the shower was run. Ms Deaves heard a thud from the bathroom, while she was in the kitchen. 26 In her evidence, Ms Deaves described the noise as "a shuddering thud, like something hitting glass". She went to the bathroom and saw that the offender had hold of Tanilla by her hair; the shower was running; the door was open. The shower was cold. 27 The offender said to Tanilla: "You don't like cold water, do you? You don't shit in my house. You're an animal". 28 Tanilla was shivering. Ms Deaves said "that's enough; she doesn't look good." For that comment, the offender slapped Ms Deaves in the face. 29 The offender then banged Tanilla's head, which he was still holding, into the glass of the shower twice. The shower was still running. Water was everywhere. Tanilla looked drowsy, as if she was going to faint. 30 The offender then shoved Ms Deaves back into the hallway where she slid in water. There was an argument. 31 The offender then took Tanilla to the toilet. He held her over the toilet by one leg; she started to cry and scream. 32 The offender was shouting at Tanilla and said: "you're a black dog; you're a black cunt!" He held her over the toilet for some period and then took Tanilla back into the shower. The water was "freezing cold". The offender turned to Ms Deaves and said "get her fucking dressed". 33 There was water everywhere from the constant running of the shower. The shower was then turned off. Tanilla came out of the shower but could hardly stand. She dropped to the floor where the offender kicked her, or pushed her with his leg, so that Tanilla slid across the floor on her stomach into the linen cupboard, a distance of approximately a metre. Her head hit the linen cupboard. 34 It seems that Tanilla bounced back from the linen closet, and the offender kicked her or slid her using his foot. Once more, Tanilla's head hit the linen cupboard. 35 There are stains on the linen cupboard that are consistent with the foregoing story. It is not clear whether the fatal injuries were caused by the banging of the head in the shower or by the banging of the head on the linen cupboard. In either case, it was the conduct of the offender that occasioned it. On one view, it may have been both. 36 Despite the caution with which I approach the evidence of Ms Deaves, I accept the foregoing from her evidence and I accept those facts beyond reasonable doubt save for the fact that Ms Deaves has exaggerated her attempt to intervene to assist her daughter, a matter which has no bearing on the offender's culpability. 37 The deceased was dressed. The offender told Ms Deaves to wake Tanilla up. The offender grabbed Tanilla by the arm and leg and threw her onto the mattress. 38 Ms Deaves placed Tanilla in a double stroller beside the mattress, in accordance with the subsequent instructions of the offender. She sought to warm her by placing a blanket over her. Tanilla was still breathing. 39 The next morning, Ms Deaves took oldest child to school. They walked. She picked her up in the afternoon and told her that Tanilla was sick. 40 It matters little for the purposes of this exercise, but it seems the events in the shower and the occasioning of the fatal injuries occurred on a Thursday night. Tanilla was left in the pram throughout Thursday night and Friday. 41 It would have been plain to all, and, on the evidence, was plain to both the offender and Ms Deaves, that Tanilla was extremely distressed and ill from the beating. Nevertheless, the child was left in the pram and was not taken for medical attention. 42 Tanilla died early Saturday morning. The medical evidence, adduced during the trial, establishes that the injuries inflicted by the offender as he repeatedly assaulted her were the cause of death. She died of a cerebral haematoma caused by severe haemorrhaging. If medical attention had been sought immediately there was a good chance that the child would have lived, and may not have been permanently affected by the injuries. That chance diminished over the time during which Ms Deaves and the offender left the child unattended. 43 The autopsy revealed significant injuries on the deceased. Most of those injuries do not relate to the infliction of the fatal injuries and I do not take them into account in determining the objective seriousness of the murder for sentencing purposes. 44 The fact, if it be the fact, that Tanilla was kept from day care because of bruising is, it seems to me, totally irrelevant to the sentencing exercise in which I am engaged. That sentencing exercise must concentrate on the infliction of the fatal injuries, the context in which those fatal injuries occurred and the treatment of the deceased after the injuries were inflicted. 45 Nevertheless, I cannot avoid the comment that this family and these children were brought to the attention of authorities. The authorities visited the home. Yet obvious injuries seem not to have caused sufficient alarm to warrant the children being taken from the home. 46 From the foregoing factual conclusions, I find the following matters as relevant to sentence. First and foremost, the victim was a child of two years and eight months in the care of her mother and the offender. Secondly, it was no part of the Crown case that the offender had an intention to kill when he inflicted the injuries. I do find, beyond reasonable doubt, he intended to cause her grievous bodily harm. 47 The circumstances of this case render the distinction between an intention to cause grievous bodily harm and reckless indifference to human life of limited value in terms of the objective seriousness of the offence and the ultimate sentence that would be imposed as a consequence. 48 Nevertheless, I make it clear that I consider the actions of the offender were such that he had an intention to cause grievous bodily harm at the time he committed this offence. 49 I accept that the infliction of the injuries from which the child died were neither planned nor premeditated. Further, notwithstanding the statements recited above as to the colour of the deceased, I do not consider that the injuries were inflicted because of hatred or prejudice against a group of people. 50 In the course of oral submissions, the Court was urged to conclude that the offence was committed in a manner that was "spontaneous". I do not consider the infliction of the injuries to be spontaneous. There is a difference between spontaneity, on the one hand, and a lack of planning or premeditation, on the other hand. In this instance, the injuries were unplanned and not premeditated, but the conduct was the culmination of two to three days of the deliberate infliction of severe corporal punishment.
The sentencing judge in determining the sentence to be imposed discussed and took into account relevant objective and subjective factors. His Honour stated that the most obvious factor in assessing the objective seriousness of the offence was the age of the victim (as noted above, two years and eight months).
As his Honour observed, the applicant at the time of the offence had been in a position of trust in relation to Tanilla and that he had abused that trust. He also observed that by reason of her very young age, the deceased had been in a vulnerable position: s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). The tender age of the victim, his Honour stated, rendered the objective seriousness of the offence of murder in this case as "particularly grave": ROS at [55]. However, whilst that was taken into account in assessing the objective seriousness of the offence, his Honour held that the age of the victim did not also aggravate the offence in terms of s 21A(2)(l) of the Sentencing Act.
In determining sentence his Honour took the standard non-parole period prescribed by s 54A of the Sentencing Act into account for an offence of murder of a child under the age of 18 years of 25 years as a "guidepost". His Honour observed in that respect that the fact of a prescribed standard non-parole period which was significantly higher than that prescribed for the offence of murder of an adult reinforces the legislative intention that the murder of a child is to be treated more seriously than the murder of an adult. The young age of the deceased was described as "a significant factor" in the assessment of the objective seriousness of the offence: ROS at [56].
The sentencing judge determined that, taking into account the lack of premeditation and planning by the applicant in relation to the subject offence, his intention had been an intention to inflict grievous bodily harm upon the deceased and not an intention to kill and that that fact took the offence out of the worst category, which would have attracted a maximum sentence of life imprisonment.
The sentencing judge determined, at [59]: It is not that the Court is imagining circumstances that would be a worse case than the one before it. It is that this case, while extremely serious, well above a mid-range of offences of murder and approaching the worst case of murder, is not in that worst category.
In relation to the applicant's subjective circumstances, it was noted that he was 29 years of age at the time of the offence. He had a lengthy and substantial history of drug use which commenced with smoking cannabis at the age of 11 or 12 years. By the age of 15 or 16, he was using amphetamines. He had a criminal history which included offences involving violence. The sentencing judge in that respect observed, at [71]: He has a criminal history involving break, enter and steal motor vehicles, common assaults, assault occasioning actual bodily harm and is not entitled to the leniency that might otherwise be afforded a person with no criminal offence history.
Dr Westmore, who was qualified to give evidence for the offender, stated that there was nothing in his history to suggest that a psychiatric illness played any role in the offence of murder for which he had been convicted.
Whilst of Aboriginal background, there was nothing before the sentencing judge to suggest that his childhood or upbringing was in any way dysfunctional or that he suffered discrimination on account of his Aboriginality.
On issues of rehabilitation and remorse, the sentencing judge concluded that the applicant's prospects of rehabilitation were poor and that no remorse was evident.
His Honour concluded that the objective seriousness of the offence was such that it approached the worst category of case for which a significant but determinate sentence should be imposed.

Ground 1: The trial judge erred in finding that the offence was "well-above the mid-range of offences of murder and approaching the worst case of murder

In the written submissions for the applicant on this ground it was stated that a finding of objective seriousness involved what was described as a "discretionary" assessment. However, it was submitted that the subject offence was not "well above the mid-range of offences of murder and approaching the worst case of murder" but that it was "above the mid-range". This submission was made upon the bases that there was no premeditation or planning and the absence of an intention to kill. It was also submitted that the violence involved was limited (as compared to the cases of R v PJS [2009] NSWSC 153 and R v Hill [2014] NSWSC 1010).

Ground 2(a): The trial judge failed to give any weight to the applicant's onerous gaol conditions

This ground is related to the applicant's protective custody status. It was submitted that the applicant would spend most if not all of his sentence on protection.
At the hearing, reliance was placed upon the unsworn statement of the applicant, Exhibit 1. Mention was also made in the course of submissions on this ground to the references in the reports of Drs Skinner and Westmore to the applicant's prison conditions. A further aspect was relied upon, namely what was said to be ongoing fear of violence and intimidation to which the applicant was exposed as a result of the murder of the deceased child.
Exhibit 1, the handwritten document prepared by the applicant, included a number of general statements. They were to the following effect:

That an unnamed officer at the MRRC had made threats to his life and had told an inmate that there was "money on my head";
That he had razor blades placed under his door and told to "knock myself";
That he had been "jumped from behind" whilst in a specified part of the gaol in which he was being held and that those who were involved had said that unspecified persons were "going to kill me";
That he had four fights whilst in gaol;
That he could not walk out of his cell to the yard as "hot water…comes over the wall";
That an unnamed "officer" had stated that "they" would come into his cell late at night and "string me up"; and
That every day in custody he has spent 23.5 hours in his cell except when in a specified area of the gaol.

In the written submissions for the applicant a number of additional matters the subject of complaint by the applicant were noted. These included:

Reference to interference with the applicant's meals;
Interference with his legal and personal documents;
Interference and delays in relation to gaol entitlements; and
A failure to keep him segregated.

In his oral submissions, Mr Bruce stated: "This ongoing concern, fear of ongoing violence and intimidation wasn't strictly taken up under this head of onerous gaol conditions before the trial judge …it clearly could have been an oversight by counsel for the accused, not to specifically go to the issue as I have in these submissions and one the judge may well miss bearing in mind the emotive nature of the matter and the time that had passed and everyone wanting to move on." (T 26 July 2016 at p 5:7-15)
Mr Bruce properly referred to the fact that there had been certain changes in the applicant's conditions in protective custody since the position referred to in Exhibit 1. He said that the applicant now has more time out of his cell than had previously been the case: T 7:1-5. He was also now engaged in work at the prison in which he is held.
Mr Bruce emphasised that "the thrust of the appeal is his ongoing hyper-vigilance": T 7:6-10. The issues as to time confined to his cell and as to the amenities available to him were referred to as an ongoing concern: T 7:8-10.
It was submitted that the sentencing judge "very briefly referred to the applicant's onerous gaol conditions but accorded them no weight: Written Submissions 17 November 2015 at [18]. It was stated in the written submissions that Exhibit 1 covered a number of different aspects of the applicant's gaol conditions. These were said to be more harsh than those acknowledged by the trial judge in his Remarks on Sentence: at [19].
Reference was also made in the submissions to "retribution" meted out to the applicant as a result of the charge for which he was eventually convicted, this taking the form of physical assaults, ongoing threats and intimidation: at [20].
In his oral submissions, Mr Bruce frankly stated that the application for leave to appeal fell on the issue as to "onerous gaol conditions": T 26 July 2016, p 1:20-25.
The submission was that whilst some of the "injustices' set out in Exhibit 1 appear to be of a minor nature, it was their cumulative and ongoing quality that was said to mark the applicant's time in custody as "extremely onerous".
It was further submitted that it is a well-recognised principle of sentencing that an offender is entitled to a reduction of his sentence where the sentence he is serving is more onerous than otherwise would be the case.
In relation to the applicant's statement, Exhibit 1, it may be noted at this point that no evidence was adduced at the sentence hearing to corroborate the matters or conditions referred to in it.
In his written submissions Mr Bruce noted at [17] that the safety of the applicant whilst in custody and other issues concerning the applicant's gaol conditions were raised on a number of occasions throughout the trial and the sentence proceedings.
To support what was described as "this ongoing fear of violence and intimidation" (T 4:25-30), Mr Bruce referred to the Report of Dr Skinner dated 1 May 2014.
On the issue of gaol conditions, Dr Skinner recorded at page 3 of her report: "Mr Ross was initially sent to Silverwater Prison, transferred to Goulburn and then returned to Silverwater. He has been in segregation which he recognises as being for his own protection because of the nature of the charges. His is very angry because a doctor stopped his medication. He had been taking the antipsychotic Seroquel 600mg daily. He said a doctor stopped the medication and he became very angry and told the doctor that he would 'cut his head off'. He was placed in a safe cell for four days. He was taken out of the safe cell and soon placed back in the safe cell for three days. Later another doctor prescribed slow release Seroquel 100mg per day. He believes the dose is insufficient. He is angry all the time. He does not like having people around him and he thinks that this is probably because he has been in segregation for some time."
Further below under the heading "Mental State Examination" she recorded: "…He asked if he could close the door of the interview room so that he would not be recognised. He said he feared an assault by other prisoners…"
The medical report of Dr Westmore, Exhibit 2, was tendered and admitted at the sentence hearing. Reliance in the present leave application was placed, inter alia, upon that part of the report (on page 5 "Other issues") which recorded the applicant's comments upon his gaol conditions as some evidence on that issue. The relevant part of Dr Westmore's report states: "Mr Ross is a non-association prisoner. At one stage he was a limited association prisoner, but he was then involved in 5 fights. He told me the father of the deceased child has 'put money on my head and he (the child's father) knows people in prison'. Mr Ross said that, when he was in Goulburn Prison, he was able to spend 2 hours a day in a small cage, which was attached to his cell. He said in Silverwater Prison he is allowed 30 minutes out of his cell each day."
Mr Bruce submitted that on sentencing there is no need for evidence to support the issue of ongoing fear of violence and intimidation because the experience of courts indicates that such fears are not novel.
Mr Bruce noted that the applicant had so far been in custody for five years and the reality was that he will be in custody for a total of 40 years with ongoing intimidation, and what was referred to as "this continual hyper-vigilance": T 4:35-40.
The contention for the applicant was that there should have been a discount on sentence by reason of the applicant's onerous conditions of custody.

Ground 3: The sentence imposed was manifestly excessive

The applicant's written submissions included a summary of comparable cases at [25]. The cases in the summary which were said to be most closely aligned to the circumstances of the applicant's case were: R v PJS, supra; Dennis v R [2009] NSWSC 1357 and R v Pfitzner [2010] NSWCCA 314. Those were said to be similar to the extent that they all involved the deaths of children aged three years and under where in each the intent was one to inflict grievous bodily harm, and cases in which the offences were not planned or premeditated and where all had more onerous gaol conditions: at [26].
It was submitted on behalf of the applicant that the violence involved in his case was "less serious" than that in PJS and Hill and about equal to that in Dennis, whilst possibly more serious than that involved in Pfitzner: at [26].
It was conceded in the written submissions for the applicant at [27] that his case was further aggravated and was accordingly distinguishable from the comparator cases referred to and relied upon in the abovementioned summary, by the fact that the applicant, and, indeed, the mother of the deceased, had failed to seek medical attention for the deceased following the assault. However, it was submitted that that fact alone did not account for what was said to be the marked variation in the findings as to the objective seriousness of the offence and the resultant sentences as between the applicant's case and that of the four comparators relied upon. It was submitted that the difference was suggestive that there must have been some misapplication of principle: at [27].

Ground 1: The trial judge erred in finding that the offence was well-above the mid-range of offences of murder and approaching the worst case of murder

The Crown placed reliance upon the fact that on numerous occasions this Court has observed that a finding of objective seriousness is a matter classically within the discretion of the sentencing judge and that the Court would be slow to set aside sentences imposed: Mulato v R [2006] NSWCCA 282 at [37]; Ali v R [2010] NSWCCA 35 at [33].
The Crown noted that a finding of objective seriousness is reviewable only by reference to the principle stated in House v The King [1936] HCA 40; 55 CLR 499. To succeed on this ground the Crown submitted that the applicant must satisfy the Court that the sentencing judge's finding of objective seriousness was not reasonably open.
The Crown submitted that the full context of the offending was properly considered by the sentencing judge in his finding as to the objective seriousness of the offence. The context, the Crown submitted, included the punishment meted out to Tanilla by the applicant over a significant period of time. This included beating her with objects including a power cord, whipping her with a cord or belt and making her run laps around the house. It was submitted that Tanilla's death took place in what was referred to as a situation of "severe ongoing abuse". An important aspect of the offending, it was submitted, was the length of time over which the offence occurred - the fatal assaults occurring on the Thursday evening but that the child died on the following Saturday morning. Her death, it was contended, could have been avoided had the applicant sought medical treatment for her, rather than leaving her to die in her pram.
The Crown further submitted that a comparison of the acts of violence inflicted on children in other murders, does not support a conclusion that the sentencing judge's classification of the objective seriousness of the offence was not reasonably open. The Crown noted that there are often differences between one case and the other. Specific circumstances in the cases of PJS and Hill were addressed in the Crown's submissions at [26]. Reliance was placed upon the sentencing judge's finding that the violence inflicted on the deceased by the applicant represented a culmination of weeks of beatings and abuse and that this was relevant to the assessment of objective seriousness of the assault that in fact led to her death. The Crown submitted that the matters identified by the sentencing judge well supported his finding that the offence was "particularly heinous" and approached the worst case of murder. The applicant, it was contended, had failed to demonstrate that such a finding was not reasonably open and that these grounds of appeal should be dismissed.

Ground 2(a): The trial judge failed to give any weight to the applicant's onerous gaol conditions

The Crown observed that the applicant did not give evidence or make himself available for cross-examination in relation to his claims recorded in Exhibit 1. The Crown Prosecutor at the sentence hearing had observed that his claims in Exhibit 1 were not supported in any other way: Crown submissions at [30].
The Crown further noted that at the sentence hearing written and oral submissions on behalf of the applicant merely observed that part or all of the applicant's sentence would be served in some form of protective custody.
The sentencing judge, the Crown noted, in fact referred to Exhibit 1 and his Honour noted the applicant's submission that he would spend most, if not all, of his sentence on protection. Additionally, the sentencing judge referred at [70] of his Remarks on Sentence to the fact that the offender was a non-association prisoner, "…had been involved in fights while on remand, partly, he says, as a result of the offence of which he had been convicted, and the alleged contacts of the deceased's father". Whilst the sentencing judge referred to Exhibit 1, his Honour also observed that the applicant had not given evidence in the sentence proceedings.
The Crown relied upon authorities of this Court to support the contention that the fact that a prisoner will serve a sentence in protective custody is not automatically to be regarded as a circumstance mitigating the sentence: R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581; R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304; and Clinton v R [2009] NSWCCA 276. Protective custody should only be taken into account in mitigation of sentence, it was submitted, where there is evidence that the conditions of imprisonment will be more onerous than those experienced by other inmates: RWB v R [2010] NSWCCA 147; 202 A Crim 209 at 192-5; and Jarrold v R [2010] NSWCCA 69 at [27].
The Crown argued that in sentence proceedings, self-serving, untested and out of court statements made by offenders should be treated with great circumspection and may be given little weight: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369; and R v Elfar [2003] NSWCCA 358 at [25] (as to the tender of a note or letter from an offender).
The evidence concerning the applicant's conditions of custody, the Crown submitted, was scant. There was no evidence that his protective custody status would limit his access to facilities, rehabilitation programs or educational programs. There was evidence before the sentencing judge that the applicant had at times consistently refused to participate in rehabilitation programs and drug and alcohol counselling.
The Crown submitted that bearing in mind that the applicant bore the onus on the issue as to the onerous conditions of custody, in light of the evidentiary shortcomings of the material relied upon by him, it was open to the sentencing judge to find that no leniency should be extended to him arising from his conditions of custody.

Ground 3: The sentence was manifestly excessive

The Crown observed that to succeed on this ground the applicant must demonstrate that the sentence was unreasonable or plainly unjust. This, it was submitted, was to be established in the context where there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Markarian v R [2005] HCA 25; 228 CLR 357 at [25] and [27].
The Crown submitted that if the finding of objective seriousness stated as "well above the mid-range and approaching worst category" is accepted as having been reasonably open, then the applicant's lack of mitigating factors combined with the maximum penalty of life imprisonment and a standard non-parole period of 25 years for a mid-range offence, meant that a determinate sentence of 40 years with a non-parole period of 30 years should not be classified as unreasonable or plainly unjust.
The Crown referred to the reports of Dr Terrence Donald. In his second report, Dr Donald referred to the vast number of injuries sustained by the deceased that he had reviewed which he considered had occurred over a relatively short timeframe (perhaps less than 48 hours before the victim's death) which "… most likely resulted from one episode of physical assault" (at p 1). Dr Donald added that the child had died of an inflicted head injury that resulted from multiple forcible impacts to her head that caused, inter alia, an intracranial (subdural) haemorrhage. The haemorrhage led to pressure on her brain causing the brain damage that led to her death.
The Crown submission was that it is by no means clear that the violence meted out to Tanilla was less than that suffered by the victims in the cases of PJS and Hill, nor was it possible to say that the level of violence was "about the same" as that suffered by the victim in Dennis.

Ground 1: The trial judge erred in fining that the offence was well-above the mid-range of offences of murder and approaching the worst case of murder

Ground 3: The sentence was manifestly excessive

As Grounds 1 and 3 overlap, I will consider them together.
The evidence well supported the findings of the sentencing judge at [11] to [50] of the Remarks on Sentence, reproduced at [11] above. No error was suggested in the submissions for the applicant in relation to those findings.
The submissions for the applicant, not surprisingly, do not suggest that the offence of murder in this case was anything other than an objectively very serious offence.
Ground 1 is limited to the sentencing judge's characterisation or classification of the offence as "well-above the mid-range of offences of murder and approaching the worst case of murder". As earlier noted, the submission was that the offence was not well above the mid-range of offences of murder, but was above mid-range: at [13]. It was argued for the applicant that this was so having regard to the following matters: 1. The offence was not premeditated or planned; 2. The violence was limited (as compared to that associated with the offences in PJS and Hill); and 3. The applicant's intention was not to kill the deceased.
I am firmly of the opinion that Grounds 1 and 3 are without merit.
The matters relied upon by the applicant are to be considered in the context of, and having due regard to, the following matters: 1. The age and vulnerability of the child, aged 2 years 8 months; 2. The context in which the objective seriousness of the offence is properly to be considered, namely the applicant's punishment by repeated infliction of violent assaults upon the deceased; 3. The number as well as the nature of the assaults inflicted upon her causing severe head injuries resulting in brain haemorrhage which led to death; and 4. The conduct of the applicant after the infliction of multiple injuries upon the child, namely his failure to take any steps to obtain medical treatment for her.
I will deal with each of these matters.
In relation to (1), the applicant was in a position of trust which, amongst other things, imposed protective responsibilities upon him in respect of Tanilla, especially so given her very young age and vulnerability. The infliction of serious assaults by him upon her represented an extreme and gross breach of that trust.
In relation to (2), the context of the offending was directly relevant to the assessment of the objective seriousness of the offence of murder. Specific matters included the nature and manner of the punishment and abuse by him of the child. The deliberate infliction of harm in requiring her, as a form of punishment, to run laps around the house over significant periods of time and whipping her with a cord or belt both separately and together, amounted to the brutal infliction of both physical and mental suffering on the child. The ability of the applicant to precipitate screaming in her simply by the uttering of threats to use the belt (paras [18]-[19] of the Remarks on Sentence) was, as the sentencing judge observed, evidence of the applicant's particular state of mind at the time of inflicting punishment. It also reflects the sense of a terrified fear in the child.
In relation to (3), the evidence of Dr Donald, in his reports, in particular, his supplementary report, established that the primary injury causing death was one involving a forceful impact to the back of the head producing a subdural haemorrhage of significant volume. There were multiple areas of bruising scattered over the head that indicated that Tanilla must have experienced what Dr Donald described as a pattern of multiple impacts "resulting from multiple physical assaults perhaps over a short period of time": Initial Report dated at p 4.
Mr Bruce in his oral submissions, whilst noting that the reports of Dr Donald were not objected to and were relevant in sentencing, observed that the Crown relied upon the opinion expressed by Dr Donald referred to in the preceding paragraph and contained in his supplementary report. Mr Bruce submitted that this Court should look with some care as to what Dr Donald said as at trial there was other evidence and issues raised as to the timing of the various injuries: T 5:20-35.
On a reading of both reports by Dr Donald, it is evident that he was cautious at arriving at his conclusions and, in particular, as to the timing of the occurrence of various injuries sustained by the deceased child.
I have previously at [60] adverted to the substance or effect of Dr Donald's evidence as to his opinion on the likely timing of the injuries inflicted upon Tanilla which included the head injuries.
The Crown's submissions extracted additional paragraphs from Dr Donald's supplementary report.
I do not consider that there is any basis for questioning or doubting either the reliability or the accuracy of Dr Donald's evidence, in particular, as to the conclusions he expressed as referred to in paragraphs [60] and [71] above.
The evidence, as noted by the sentencing judge, established that the applicant banged Tanilla's head into the glass of the shower in all three times before taking her back into the shower running cold water over her in the manner described by the sentencing judge. That series of assaults was then followed by the kicking of the child as described by his Honour at [33] which projected her into the linen cupboard striking her head upon it.
In summary, the assessment of objective seriousness of the offence of murder in this case required consideration of relevant contextual matters, the nature and number of the assaults, the level of violence involved and the applicant's culpable state of mind at the time he inflicted head and other injuries upon the child.
The description of the offence of murder by the sentencing judge in this case as "particularly heinous" is in my opinion, an entirely accurate one. His Honour's classification of the offence as well above a mid-range of offences of murder and approaching the worst case of murder, was fully supported by the evidence and the unchallenged findings made based on that evidence. Indeed, in my opinion, no other classification of the offence was open.
In relation to (4), the evidence was that had medical attention been sought for Tanilla, her death could have been avoided. Dr Donald in his supplementary report at [130] stated: "Prompt medical attention for such a head injury, which would have included surgical evacuation of the subdural haemorrhage, is likely to have resulted in Tanilla's survival. Urgent medical treatment may have led to containment of the secondary injury to the brain, the effects of which led to Tanilla's death."
The significance of this evidence in relation to the subject of the objective seriousness of the offence was emphasised in the Crown's submissions to this Court.
The fact that the offence was not premeditated or planned was, as mentioned above, one of the matters that the sentencing judge determined moved the objective seriousness of the offence out of the worst category. However, his Honour also noted at [50]: "In this instance, the injuries were unplanned and not premeditated, but the conduct was the culmination of two to three days of the deliberate infliction of severe corporal punishment."
Additionally, as earlier noted, the Crown submitted that that factor was undermined by the fact that following his infliction of injuries upon Tanilla, the applicant then took no action and let her die some 36 hours later. After setting out Dr Donald's opinion (quoted above), the submission for the Crown in this respect, which I entirely accept, was as follows: "That is a very, very important aspect of this case. Because it was within the power of applicant to save this child after he had inflicted these injuries. That is a very, very important aspect of the objective seriousness of it. Not only did he cause the injuries that caused her death, he then let her die. She was in a pram in his bedroom for 36 hours and the learned sentencing judge found it was obvious to him that she was extremely ill and in need of urgent medical treatment. That aspect of this case in my submission undermines the submission now made by the applicant, and made at trial, that this was not premeditated or the offence is somehow mitigated by the lack of premeditation. Because this criminality was extreme and ongoing for over 36 hours so the mitigatory effects of a lack of premeditation diminish over time and they diminish very greatly the closer she got to death over Friday and Friday night."
I have had regard to the sentences imposed in the cases involving offences of child murder relied upon and referred to in the applicant's submissions. The evident factual differences in each of the cases, makes anything approaching a strict comparison difficult. A reference to the facts in R v PJS and R v Hill confirms that fact.
In R v PJS, the evidence relating to the offence concerned one episode during which the victim, a three-year old, was subjected to violent assaults over an estimated period of in excess of twenty minutes. The victim sustained a very large number of blunt force injuries which had involved the application of considerable force to the child's head. Other signs of bruises and injury were the subject of evidence. The offender was twenty five years of age. Aggravating factors included the offender having been in a position of trust and the victim's vulnerability. One mitigating factor was that it was not part of a planned activity. A finding was made that the killing of the child was above the mid-range of objective criminality though it was noted "… not substantially so": at [35]. The offender was sentenced to a non-parole period of 20 years with an additional term of 6 years.
In R v Hill, the deceased child was aged two years and seven months. At different points of time between September 2006 and April 2007 bruising and swelling had been noted on parts of the child's body. The offence occurred in 3 March 2008 when the child was left in the sole care of the offender. The cause of death was a massive fracture of the right occipital bone and resultant swelling of the brain. There was a secondary cause of death, a gastric tear, which had caused peritonitis. The sentencing judge took into account the extremely young age of the victim and the child's obvious vulnerability, and the gross breach of trust by the offender. A finding was made that the offender did not intend to kill the child but acted with an intention to inflict grievous bodily harm upon him. The offender was not planned or premeditated.
The offender was aged 33 years at the time of the offending. He was allowed a discount of ten per cent for his guilty plea. He had no criminal history and the evidence tentatively pointed in favour of the offender's ultimate rehabilitation.
The offender was sentenced to a non-parole period of 20 years and 6 months with a balance of term of 7 years, a total sentence of 27 years and 6 months imprisonment.
An examination of the comparator cases, including in particular the cases of PJS v R and Hill v R, I confirm the Crown's written submissions at [27] and [28] which were as follows: Comparison of the acts of violence inflicted on children in two other murders does not support a conclusion that the sentencing judge's classification of the objective seriousness of this offence was not reasonably open. As is often the case when comparing individual offences, there are various differences between this case and PJS and Hill. The assault in PJS was a spontaneous outburst of uncharacteristic violence, unlike this offence, which was a brutal response to Tanilla wetting her pants, and occurred against a background of violence. The offence in Hill involved two discrete injuries, unlike this case which involved at least five blows to the victim's head. And unlike the offenders in PJS and Hill, the applicant's continuing failure to obtain any help for the deceased (over a period of about 36 hours) was causally connected to her death. As his Honour noted, the violence inflicted on Tanilla by the applicant was the culmination of weeks of beatings and abuse. This was a matter that properly bore on the assessment of the objective seriousness of the assaults that finally led to her death: Giles v DPP [2009] NSWCCA 308 at [46]-[68] per Basten JA (see also the comments of Johnson J at [102]-[104]; Einfeld [2010] NSWCCA 87 at [146]; Baines v R [2016] NSWCCA 132 at [6] per Basten JA and [127] per Fagan J."
The particular facts and circumstances of the offending in this case were, in my opinion, of such objective gravity as to distinguish it from the comparator cases relied upon in the applicant's submissions. The finding of the sentencing judge that the offence was well above the mid-range of offences of murder, and approaching the worst case of murder, for reasons earlier stated, was soundly based.
In Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41], French CJ, Hayne, Kiefel and Bell JJ stated: "The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence: Hili v The Queen (2010) 242 CLR 520 at 535 [48]-[49]. As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil‑Brown, the synthesis of the 'raw material' which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel."
In relation to the applicant's subjective factors, whilst the evidence established that he had a long history of disordered behaviour and drug taking with associated problems from a very young age and which supported Dr Skinner's diagnoses of antisocial personality disorder and polysubstance abuse, the subjective factors to be taken into account by the sentencing judge were very limited. In particular, there was no evidence of remorse and his rehabilitation prospects were assessed by Dr Skinner as poor.
The sentencing judge considered at some length the applicant's background, his personal history and the medical assessment, including in particular, that of Dr Westmore.
The sentencing judge's conclusion was (at [78]): "There are no significant subjective factors that ameliorate the seriousness of the offence or that warrant any form of leniency."
No criticism has been directed at that assessment. None, in my opinion, could be made. The assessment fairly and accurately reflected the evidence.
In my opinion, Grounds 1 and 3 are without merit and should be dismissed.

Ground 2(a): The trial judge failed to give any weight to the applicant's onerous gaol conditions

Protective Custody

It is necessary to refer in relation to Ground 2 to the fact that there was at the hearing of the application a change in emphasis or focus as to certain matters relied upon by the applicant in the written submission in support of this ground of appeal.
There are two matters in this respect. The first relates to the particular nature of the applicant's gaol conditions. The second concerns the submission that the sentencing judge had failed to take into account the applicant's onerous conditions of custody. This latter submission was reformulated at the hearing to a submission that the sentencing judge failed to give any or insufficient weight to the applicant's gaol conditions: T 1:35-45.
In the primary written submissions for the applicant, the "conditions" said to have been onerous related to the matters referred to in [25] and [26].
In the applicant's Submissions in Reply dated 24 July 2016 it was stated: "A measure of the applicant's submissions in relation to this ground of appeal is the ongoing fear of violence and intimidation as a result of the murder of the deceased child…" (at [3])
It was acknowledged in those submissions that the issue as to the fear of ongoing violence and intimidation was not raised as "a discrete matter" before the trial judge on sentence. The principles in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 were accordingly applicable.
Before dealing further with Ground 2(a), it is appropriate to note here that Mr Bruce disclosed to the Court that the applicant's position in terms of hours spent out of his cell has changed since he was sentenced.
The applicant was granted leave to rely upon the affidavit of Rebecca Crosweller, solicitor, dated 25 July 2016. Mr Bruce stated that the affidavit was not relied upon as fresh evidence but it was relied upon in the event that the Court intervened and resentenced the applicant.
The Crown was granted leave to rely upon the affidavit of Miriam Rottenberg, solicitor, dated 26 July 2016.
Both affidavits contain information concerning the applicant's conditions of custody. Mr Bruce indicated that Ms Crosweller's affidavit had been filed so that the Court would not be misled as to the position concerning his present conditions as to protective custody.
At the time of sentencing, his Honour noted at [70] that the applicant was a non-association prisoner. The position presently is that he is confined to his cell fifteen hours and thirty minutes on weekdays and eighteen hours on weekends. There is no difference in cell hours between mainstream inmates and protection inmates within the gaol where the applicant is presently held.
As Mr Bruce properly acknowledged in his oral submissions, the sentencing judge was aware of and took into account the applicant's statement or "Affidavit" (Exhibit 1) and the reports of Drs Skinner and Westmore. It is clear that his Honour having done so, was aware of the discrete matters concerning the applicant's gaol conditions referred to in Exhibit 1 and to the history given by the applicant to the examining consultant psychiatrists.
His Honour expressly referred at [70] of the Remarks on Sentence to certain of those matters.
The submission for the applicant that his Honour did not give any weight to the applicant's gaol conditions should, in my opinion, be rejected. The evidence, in my opinion, clearly shows that his Honour had regard to the matters which the limited evidence on gaol conditions addressed and to the submissions made in that respect. It is not to be left out of account, particularly in relation to the alternative submission to the effect that his Honour did not give sufficient weight (T 1:40-45) to the evidence as to onerous gaol conditions, that the applicant did not give evidence at the sentence hearing and there was no other evidence called or adduced to establish or corroborate any particular matters, concerning conditions of custody. Apart from Exhibit 1, there remained only brief references to the conditions in the histories given to the examining psychiatrists to which I have referred (and the statement by the applicant to Dr Skinner as to closing the door and his fear of being assaulted), going to the matter of his fear of violence and intimidation.
Where it is contended that the conditions of protective custody are harsh or onerous in a particular respect or respects, then such conditions should be established by evidence. In R v Mostyn, supra, Howie J observed at [179]: "The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in Durocher-Yvon the Court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case."
On the evidence that was before the sentencing judge his Honour would have been well aware that in a case of this kind a person held in protective custody could be expected to hold an apprehension as to his own safety and welfare. That said, it is to be noted that the applicant did not specifically raise or discuss with Dr Skinner any specific concerns he had as to his gaol conditions beyond the matters referred to in her supplementary report as extracted above. Nor was it a matter the applicant emphasised or discussed with Dr Westmore. Although he gave Dr Westmore an account of having been involved in five fights, he did not identify objective or specific factors said to have precipitated any one of them.
As Mr Bruce acknowledged, the issue of onerous gaol conditions arising from ongoing fear of violence and intimidation or "ongoing state of hyper-vigilance", was not a matter which was taken up at the sentence hearing: T 5:5-15. Mr Bruce stated it could have been an oversight by counsel appearing for the applicant at the sentence hearing not to have specifically made a submission on this issue. I do not, with respect, consider that there is evidence of, or a basis for inferring or concluding that such "oversight" occurred.
In Zreika v The Queen, supra, Johnson J at [73]-[79], with whom McClellan CJ at CL and Rothman J agreed, stated that this Court will not lightly entertain arguments that could have been put, but were not advanced before the sentencing judge. His Honour at [82] noted that: "In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge."
His Honour indicated that where there may exist circumstances where oversight or error would result in a serious injustice then the error could be corrected on appeal.
However, before concluding in this case that such exceptional circumstances exist, it is necessary to have regard to the fact in this case that there was extremely limited evidence on the subject of "fear of ongoing violence and intimidation" as discussed above. This is not a case where that matter was clearly established before the sentencing judge as a material or significant factor that was overlooked.
Further, there was no evidence that the issue now sought to be raised is one that could unequivocally operate in the applicant's favour on sentence. In particular, there was no evidence or suggestion of any material or significant worsening of gaol conditions in any particular respect since the applicant was sentenced on 30 May 2014.
Finally, in relation to the submission that the sentencing judge did not give "sufficient weight" to the issue of onerous gaol conditions, the failure of a sentencing judge to attribute sufficient weight to an issue at sentence is not a ground of appeal that falls within the types of error in House v The King, surpa; Bugmy v R [2013] HCA 37; 249 CLR 571 at [22], [53]; and CMB v Attorney-General for NSW [2015] HCA 9; 317 ALR 308 at [48].
I do not consider that there is any merit to Ground 2. That ground should be dismissed.

Conclusion

The relevant facts and matters, and the findings made by the sentencing judge bearing upon the objective gravity of the offence, and the absence of subjective factors of significance, in my opinion, all justify the substantial sentence of imprisonment imposed upon the applicant. The sentence, in my opinion, was not manifestly excessive. Further, there is no basis for a conclusion to be drawn, as argued on behalf of the applicant, that the sentence reflects in any way a failure by the sentencing judge to have regard to, or to give sufficient weight to, the applicant's protective custody conditions, the subject of complaint in Ground 2(a).

Orders

I propose the following orders: 1. Leave be granted to appeal. 2. The appeal be dismissed.
BELLEW J: I agree with Hall J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2016

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