Supreme Court New South Wales Medium Neutral Citation: R v Smith [2022] NSWSC 1651 Hearing dates: 1 December 2022 Date of orders: 7 December 2022 Decision date: 07 December 2022 Jurisdiction: Common Law Before: Wilson J Decision: 1. Jie Smith, having been convicted of the manslaughter of Rylan Bull, on 9 February 2019 at New Lambton in this State, is sentenced to imprisonment for 4 years and 9 months, to date from 13 August 2019 and expiring on 12 May 2024; with a non-parole period of 3 years and 6 months, which will expire on 12 February 2023. Catchwords: CRIME – sentence after trial – verdict of guilty to the statutory alternative to murder of manslaughter – death of 6 month old baby – question of basis of liability for manslaughter – question of sufficiency of evidence for manslaughter by unlawful and dangerous act – alternative basis of liability gross criminal negligence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: PTC v R [2011] NSWCCA 51 R v BW and SW (No 3) [2009] NSWSC 1043 R v Eriksson [2001] NSWSC 781 R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247 R v HA [2008] NSWSC 1368 R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 R v KJ [2015] NSWSC 767 R v Wilkinson [1999] NSWCCA 248 SAM, Thomas v R SAM, Manju v R (2011) 206 A Crim R 67; [2011] NSWCCA 36 Category: Principal judgment Parties: Rex (Crown) Jie Smith (Offender) Representation: Counsel: N Adams SC (Crown) P Rosser KC (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Offender) File Number(s): 2019/49022 Publication restriction: Nil Judgment 1. HER HONOUR: In the early hours of 9 February 2019 six month old Rylan Bull was taken by ambulance to the John Hunter Hospital in a critical condition. He had suffered severe head injuries, injuries that, despite the efforts of medical staff, led to his death later that day. How an otherwise healthy baby boy came to be critically injured was the subject of the trial of the offender, Jie Smith, before this Court from 4 July 2022 to 19 July 2022. At the end of the proceedings, the jury returned verdicts of not guilty of the charge of murder on the indictment presented against the offender, and guilty of the statutory alternative of Rylan's manslaughter. 2. It is that offence for which Jie Smith stands to be sentenced today. Manslaughter is an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW); it carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period. 3. The jury having found the offender guilty of Rylan's manslaughter, it is for the Court to find the facts of the crime. In finding the facts of the offence for the purpose of sentencing, consistent with the verdict of the jury, conclusions adverse to the offender must be established beyond reasonable doubt, whilst matters favourable to him need only be established to the lower civil standard of proof: R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 at 377-378. The Court may have suspicions as to what happened to Rylan, but suspicion must be distinguished from proof to the relevant standards and, particularly, proof beyond reasonable doubt. 4. Juries are commonly directed that a criminal trial is not a search for the truth. Despite that injunction, it is frequently the case that, at the end of a trial, it is possible to have a clear understanding of the facts and circumstances surrounding the commission of the offence. This is not such a matter. Despite the Court having heard from 26 witnesses over the 9 days of the trial, and having examined some 30 documentary and other exhibits tendered during the proceedings, there remains considerable uncertainty about the events of and around 9 February 2022 and specifically, considerable uncertainty as to Rylan's fate. 5. What can be said is that, in his tragically brief life, Rylan was exposed to danger, and danger found him. How and in whom that danger manifested is not established on the evidence, bearing in mind the high standard of proof that applies to any conclusion that is adverse to the offender. To find that the offender deliberately struck or shook Rylan, albeit without an accompanying intention to do him grievous bodily harm, it would be necessary to accept beyond reasonable doubt the evidence of Kirsty Ruyter that, when she left Rylan with Mr Smith in the very early hours of 9 February 2019, the baby was largely uninjured. That the Court cannot do. 6. From the point at which she was aware that Rylan had been taken to hospital Ms Ruyter gave conflicting accounts of the circumstances of his last hours. She lied repeatedly to the police, and aspects of her evidence to the Court were, at best, inaccurate. Her evidence concerning Rylan's state of wellbeing when she last saw him cannot be accepted to the high criminal standard of proof. 7. Neither can the Court accept the evidence of the offender as to having witnessed Ms Ruyter striking and shaking her baby. He too lied comprehensively to the police. His explanation for those early lies – that he intended to protect Ms Ruyter, is inconsistent with the objective evidence as to the nature of his feelings for Ms Ruyter, and of the relationship between them. That he lied to protect Ms Ruyter is evidence the Court does not accept; something else was behind the offender's false account to police. 8. His eventual account of witnessing Ms Ruyter assaulting Rylan by delivering four blows and four shakes, came four months after the events, and only after the offender had been charged with the baby's murder and was facing trial. His evidence before the jury was unimpressive and had, in my assessment, the flavour of a construction, given to meet what he knew of the Crown case. The precision of his account of the blows and shakes Rylan supposedly received at his mother's hands did not sit comfortably with the objective fact of a highly drug affected witness. His concession that, witnessing such a thing, he did nothing to intervene or protect the baby, did not sit comfortably with ordinary experience of the way people behave. 9. One example might point to the unreliability of the whole, that being the offender's account of how at least some of the bruises to Rylan's knees were occasioned, an account he could not deny because of the objective evidence contained in a text message on the subject. In the face of expert medical evidence, as well as common sense and ordinary life experience, both of which establish that the prominent bruises to the baby's knees could not have been caused by playful tickling, the offender maintained on his oath that such was the cause. That evidence can only be false. 10. Dr Duflou deposed that the head injuries to Rylan could have been inflicted in the manner outlined by Mr Smith and the Court accepts the doctor's evidence. However, it is a feature of limited weight given that, by the time the offender gave his account of the supposed assault by Ms Ruyter upon Rylan, he had had access to at least general information as to the nature and likely cause of the injuries inflicted upon Rylan and he could have readily matched his account to that information. 11. The Court is left with conflicting evidence from the only two witnesses who could know the most important facts, each with a motive to lie, and each of whom did lie, at least to the police, and almost certainly also to this Court about significant matters. Neither gave evidence that the Court can accept, in Ms Ruyter's case, beyond reasonable doubt, and in the offender's, on the balance of probabilities. 12. For those reasons the Court cannot, by this judgment, establish the truth of what happened to Rylan, or apportion blame for the injuries inflicted upon him. The evidence is too unreliable for those conclusions to be drawn. 13. It is acknowledged that there must be a real sense of injustice, or at least of justice not fully done, because the Court cannot truly vindicate Rylan's death. It is another of the features of this case which will no doubt cause distress to those most involved, and which should distress us all as a community. That a child can die violently at the hands of someone who should have cared for him, and yet the community be ignorant as to the circumstances of the violence, is shameful for us all. 14. What can be said is that, the offender having assumed Rylan's care and taken responsibility for a tiny and vulnerable baby in the early hours of 9 February 2019, he failed him in the most grievous way. Knowing that Rylan was injured, the offender failed to take any steps to get him the assistance he so clearly required, even though he was the only person who could have done so, until it was too late. That is the crime for which he is to be sentenced, his failure to fulfil his legal duty to act to assist a baby in his care, that failure accelerating Rylan's death. The Gravity of the Crime 1. The Court is obliged to make some assessment of the objective gravity of the offence. All manslaughters are serious because the death of a human being is involved. Here the facts and circumstances that are of particular significance are these. 2. Rylan was in the offender's sole care for a period of between two and three hours on 9 February 2019 and in that time, the offender was the only person who could have rendered him assistance. Having taken Rylan into the home in which he lived alone, the offender had removed the baby from the observations and potential assistance of others during that time. 3. The offender knew, one way or another, that Rylan had been seriously assaulted, and the baby's presentation must have been a clear warning that medical assistance was required. Despite his knowledge of the injury done to Rylan, the offender failed to act to obtain medical assistance for him. 4. His failure extended to as much as the full two or so hour period over which he had sole care of Rylan. Whether it was for the full period or less than that, there must have been an extended time in which the offender, knowing of the child's injuries, was or became aware that he needed medical attention, and failed to secure help for him. By the time the offender ran to a neighbouring property calling for assistance, it was too late. 5. The reason for the offender's failure to act cannot be precisely determined, but it was, one way or another, motivated at least in part by his desire to avoid police attention. Accepting that the offender's ignorance of the possible consequences of the injuries to Rylan informed the choices Mr Smith made, the Court is satisfied to the criminal standard that at least part of the reason for his failure to seek assistance was because he understood that police would likely be involved if he did. In that way the offender put the interests of an adult in avoiding police scrutiny over the urgent needs of an injured baby. 6. The extent of the consequence of the delay in obtaining help is another thing that cannot be precisely determined. Dr Duflou was unable to say whether Rylan's life could have been saved had he received medical attention sooner. Accepting that evidence, the Court concludes that the offender's failure to take Rylan to a hospital or to get him help at least accelerated the baby's death. It certainly means that some of Rylan's last hours were spent in pain, rather than in the care of professionals, who would have ensured that he felt no pain or discomfit. 7. As a six month old pre-verbal and pre-ambulatory baby, Rylan was completely dependent upon the offender to secure assistance for him, and completely vulnerable to the offender's failure to do so. That failing was a grievous one. The Impact of the Crime 1. The Court heard from members of Rylan's family of the pain and loss caused by his passing. His siblings have been distressed and confused by his death, and all his family feel deeply the grief of his death. Their grief will not end with today's proceedings, and I extend my sympathy to Rylan's family. 2. Even without having regard to the contents of the victim impact statements the depth of pain caused by the death of a child can be understood, or at least glimpsed. For the whole community, there is something that is particularly unnatural about the death of a child, particularly a child as young as Rylan. All the possibilities that lay within a child, the things that might have been, are lost in death; an unlimited potential is left unfulfilled. The great joys as well as the losses of life that Rylan could have experienced over the coming years have vanished, with only a deep sense of the unfairness of the loss of such a young life left behind. 3. The whole community is diminished by the death of a child in circumstances such as these. Other Evidence Relevant to Sentence 1. The offender was arrested in relation to Rylan's death on 13 February 2019 and has remained in custody with respect to this matter since that date. The sentence imposed upon him today must be backdated to take into account the time Mr Smith has spent in custody. Not all of the period from 13 February 2019 until today, however, is solely attributable to remand for this matter. 2. Exhibit ("Ex.") A2 is the offender's criminal history, a history which commenced in 2013 when the offender was aged 22 years, with driving offences. An offence of using a carriage service to menace was dealt with by way of fine in the same year. That offending was followed about five years later, in 2018, by a conviction for what must have been, having regard to the absence of any penalty, a very minor larceny. 3. In November 2018 the offender faced Wyong Local Court for an offence of common assault, committed in January of that year. The victim of that crime was the offender's then partner, who was pregnant at that time with his child. The offender was sentenced to a community corrections order for a period of 2 years, which required him to undertake community work and refrain from alcohol consumption. Significantly, the order was current at the time of Rylan's manslaughter, and the offender was in breach of conditional liberty by his commission of this crime. 4. The offender was later, on 23 October 2019, called up as in breach of the order, presumably because his incarceration for this matter prevented him from completing the community work component. He was sentenced on call-up to a term of 16 months imprisonment, to date from 13 April 2019 and expiring on 12 August 2020. A non-parole period ("NPP") of 8 months was fixed, expiring on 12 December 2019. The sentence was an aggregate sentence, imposed at the same time as sentence for unrelated offences charged against the offender on 29 January 2019, only a fortnight or so before Rylan's death. 5. Those offences were destroying or damaging property, entering a building with intent to commit an indictable offence, and stalking or intimidation. These were also offences against a former partner, the mother of the offender's other child. The offender was sentenced before the Newcastle Local Court for each of them on 23 October 2019, receiving the aggregate sentence of 16 months imprisonment to which I have already referred. 6. A few months before being sentenced for those offences the offender was before the Newcastle Local Court where he was sentenced on 3 July 2019 for two counts of dishonestly obtaining a benefit by deception involving the failure to pay for petrol. An aggregate sentence of 2 months imprisonment was imposed upon him. It commenced on 1 May 2019 and expired on 30 June 2019. 7. As that recitation of the offender's antecedents makes clear, the offender has been serving other sentences during part of the period of remand for this offence. From 13 April 2019 until 12 December 2019 the offender was serving an 8 month NPP, which itself subsumed a 2 month sentence served through May and June 2019. The offender is not entitled to have the whole or even any part of that period of 8 months imprisonment taken into account in the calculation of the commencement date for the present sentence. Bearing that in mind, the sentence to be imposed today will commence on 13 August 2019, allowing for 2 months concurrency between those sentences and this, with 6 months of the other terms of imprisonment to stand alone as discrete punishment for those crimes. 8. Since entering custody the offender has been dealt with for two institutional infringements, in February and August 2021. It is evident from the nature of the infringements and the penalties imposed that neither was a particularly serious breach of prison discipline. They have some relevance to rehabilitation although, noting the passage of time since the last adverse entry, that relevance is minimal. The Subjective Case 1. In sentencing the offender, the Court must have regard not just to his crime, but to his personal circumstances. 2. The Court heard evidence from the offender, and from his step-father, Mr Cox, and received documentary exhibits. 3. The offender, who is now aged 31 years, told the Court on 1 December 2022 that he greatly regrets failing to take action to assist Rylan and will always live with the consequences of his conduct, never forgetting Rylan, and never ceasing to regret his death. 4. The offender was once a promising young footballer who intended to pursue a professional career. His move from Gunnedah to Newcastle was to further that ambition. Instead, he was exposed to drug use by a family member, and that dream was lost to him. 5. The offender, rightly, recognises that drug use played a significant role in Rylan's death, and in bringing him to where he is today. He said that he has been abstinent from drugs since entering custody, and there is nothing in the custodial history, Ex. SA4, to suggest otherwise. Certainly, the offender's appearance – which is greatly different to his appearance in recordings from February 2019 – is no longer that of a drug addict. 6. The offender has expressed the intention of returning to his family home in Gunnedah, and there remain drug free, pursuing employment and being a better father to his own two children. 7. The offender's step-father, Mr Cox, has told the Court that the offender has the full support of his family in pursuing those goals. Mr Cox impressed in his evidence as a good man who, together with his wife, Mr Smith's mother Janelle, will do what he can to support the offender and assist him to remain abstinent from drug use, and to find useful employment. Mr Cox has been employed with the same construction company for many years, and believes that there is a reasonable prospect of helping the offender to secure employment with the same firm. 8. In addition, Mr Cox and Ms Smith have offered their son a home with them in Gunnedah, and have made many inquiries in their local area and further afield in Tamworth, concerning services to assist him. They have established a network of support services that are prepared to work with the offender, including the Aboriginal Medical Service at Tamworth (Ex. S4), which can provide social work, psychological, and drug rehabilitation counselling among other services to the offender. 9. The majority of the offender's time in custody has been affected by both the COVID-19 pandemic and his status as a protection inmate, leading to conditions of custody more onerous than those experienced by mainstream prisoners (Ex. S1). The restrictions due to the pandemic have limited access to in person visits with family, whilst his protection status – at least until mid-August 2022 – limited the offender's opportunities to mix with other prisoners and have full access to employment as well as educational and other programmes in the prison in which he was housed. For the last four months the offender has had full access to vocational and educational opportunities, with a change from his protection status. He is now employed in ground maintenance, working from 7:00am until 1:00pm, and can take advantage of facilities for education and counselling. Other Matters Relevant to the Determination of Sentence 1. The offender first indicated his willingness to plead guilty to the offence of manslaughter on 12 August 2021, ahead of the first date fixed for trial, 6 September 2021. The plea having been rejected by the Crown, the offender entered his plea to the alternative charge when formally arraigned before the jury panel on 4 July 2022. He is entitled by operation of the Crimes (Sentencing Procedure) Act 1999 (NSW) to a discount on the sentence that would otherwise be imposed upon him of 10%. 2. Further, some reduction in sentence is appropriate because of the efficient way in which the offender conducted his trial. Much of the Crown case was adduced by way of a Statement of Facts pursuant to s 191 of the Evidence Act 1995 (NSW), and where witnesses were required, there were real issues to be raised with them. No witness was called needlessly. The expeditious and cooperative way in which the trial was conducted evidences the offender's willingness to facilitate the course of justice. 3. The offender has also made a statement adopting the evidence he gave at trial and has stated his willingness to give evidence in any prosecution of Ms Ruyter connected with Rylan's death (Ex. S3). His willingness to give evidence is a feature that should be acknowledged by some small amelioration of sentence; even if the value of his offer to testify may be limited or negligible, with the offender never called upon to make good that offer. 4. The Court has been advised that no decision has been made by police concerning any charge or charges to be brought against Ms Ruyter relevant to Rylan's death. If the only evidence against her is that of the offender, it may be that no charge will ever be brought. His account of her actions came late, after lies had been told, and at a point when the offender had a strong motive to lie and blame someone else for Rylan's death. Even if the offender's account is a truthful one, and that is by no means assured, there is considerable scope for a future cross-examiner to impugn it as self-serving and unreliable. With no future prosecution signalled or perhaps likely, there is no basis for the Court to afford any amelioration to the sentence in recognition of future assistance by the offender. His past assistance is of relevance, although to a very modest extent having regard to its limited value. 5. I do not regard it as necessary to quantify the discount for assistance, since it will not on the information presently known, be necessary at some future stage to separate it from a portion of the discount attributable to future assistance. It is unlikely that the offender will ever be asked to give evidence and the reduction of sentence only recognises the offer of assistance to date. 6. The offender has said that he is remorseful, and the Court accepts that he is contrite. In his evidence on sentence the offender appeared to speak directly to Rylan's grandmother and aunts when he apologised for his conduct. That is in the Court's view an act of contrition; it takes a degree of courage to face those who have been most wronged by the commission of a serious crime and acknowledge the wrong. The offender was prepared to do so and that should be recognised. 7. Also, to be acknowledged are what appear to be fair, if guarded, prospects of rehabilitation. The offender has already travelled a part of the path to rehabilitation in recognising the damage caused by drug use, and determining to use drugs no more. He has ceased drug use in custody and, if he can continue that abstinence on discharge from prison, his future prospects are reasonably positive. Everything will be dependent upon it; if the offender wishes to achieve his goals, he must remain drug free. To that extent, his future is very much in his own hands. 8. The principles of specific and general deterrence have a role to play in the imposition of sentence. The offender, and others who might act as he did, must be deterred from doing so. 9. In determining sentence the Court has had regard to other decided cases, including R v Wilkinson [1999] NSWCCA 248; R v Eriksson [2001] NSWSC 781; R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247; R v HA [2008] NSWSC 1368; R v BW and SW (No 3) [2009] NSWSC 1043; PTC v R [2011] NSWCCA 51; SAM, Thomas v R SAM, Manju v R (2011) 206 A Crim R 67; [2011] NSWCCA 36; and R v KJ [2015] NSWSC 767. It is not suggested that any one of those decisions is truly comparable to the present case. Ultimately, sentence must be imposed in accordance with the principle expressed in R v George, at [46]: "[…] while it is always necessary to have regard to the particular factual context in order to understand the human tragedy involved in any particular case, it is also not possible to overlook the circumstance that the offence involves the felonious taking of a human life and, as such, calls for a grave measure of criminal justice, that is, one commensurate to the objective and subjective circumstances of the case: R v Hill (1981) 3 A Crim R 397." A Final Matter 1. Before imposing sentence, the Court wishes to mark the bravery of the offender's neighbour, Kathy Walker. Ms Walker was woken from sleep in the early hours of 9 February 2019 by the offender, whom she did not know, calling for help at her front door. His conduct and appearance would have been frightening, and Ms Walker was understandably distressed by both his hysteria and the lifeless appearance of the baby he was carrying. Despite the distressing circumstances, Ms Walker contacted the Emergency Services Operator, took charge of Rylan, and thereafter did everything she could to restore breath to him. She continued to administer first aid to him over many, many minutes, until police and ambulance arrived to take over. Her actions should not go unremarked. She is to be commended for what she did that morning. Sentence 1. The sentence to be imposed today must take into account all of the matters to which the Court has referred. It will not and cannot punish the individual who inflicted the fatal injuries upon him. It will not and cannot reflect the enormity of the loss of Rylan's life, or its value. 2. The sentence must serve the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act by punishing the offender and making him accountable for his crime, denouncing the crime, and recognising the harm done by it. It must also promote the offender's rehabilitation. Although the statutory non-parole period will be adequate for the latter purpose, there will be some minor adjustment to the non-parole period to eliminate the need to include a period of days in the sentence. For that purpose only a finding of special circumstances has been made. 3. Jie Smith, having been convicted of the manslaughter of Rylan Bull, on 9 February 2019 at New Lambton in this State, is sentenced to imprisonment for 4 years and 9 months, to date from 13 August 2019 and expiring on 12 May 2024; with a non-parole period of 3 years and 6 months, which will expire on 12 February 2023. ********** 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: 07 December 2022