Regina v Bilton [2000] NSWSC 1113

New South Wales Supreme Court

CITATION : Regina v Bilton [2000] NSWSC 1113 FILE NUMBER(S) : SC 70079/99 HEARING DATE(S) : 04/09/00, 05/09/00, 06/09/00, 07/09/00, 11/09/00, 03/11/00, 17/11/00 JUDGMENT DATE : 17 November 2000

PARTIES : Regina Paul William Bilton JUDGMENT OF : Bell J at 1

COUNSEL : Mr N Harrison - Crown M G Cusack QC - Prisoner SOLICITORS : SE O'Connor - Crown Budd & Piper - Prisoner LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Ditford (unreported) NSWCCA 17 March 1992 CASES CITED : R v Vaughan (1991) 56 A Crim R 355 R v Champion (1992) 64 A Crim R 244 R v Richards & Gregory [1998] 2 VR at 10. DECISION : For manslaughter conviction, sentenced to a term of 7 years imprisonment to date from 20 June 2000. Non-parole period of 4 years and 6 months specified. First date eligible to be released on parole 19 December 2004.; For assault occasioning actual bodily harm conviction, sentenced to 6 months imprisonment to commence on 20 June 2000.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Friday, 17 November, 2000 70097/00 - REGINA v Paul William BILTON

SENTENCE 1 HER HONOUR: On 5 September 2000 Paul William Bilton was arraigned before me on an indictment which charged him that on 23 February 1998 at Chinderah he did assault Corey Jessel then occasioning to him actual bodily harm and with the manslaughter of Corey Jessel on 25 February 1998. He entered a plea of guilty to the first count and one of not guilty to the count charging him with manslaughter. 2 The prisoner elected to be tried before me alone and the Crown consented to that course. On 11 September 2000 I returned a verdict of guilty of manslaughter and entered a conviction consequent upon that verdict. The matter was stood over to 3 November 2000 for sentence hearing. 3 At the time of the subject events the prisoner was living in the Chinderah Caravan Park. His girlfriend, Cheryl Jessel, was also a resident of the caravan park and lived in a van located across the road from his. The two had been on close terms for about 12 months. Ms Jessel was the mother of Corey. As at February 1998 Corey was just a little over two years old. Although the couple did not live together it was common for Cheryl and Corey to stay overnight in the prisoner's van. Over Corey's short life the prisoner had come to stand in the position of father to him. 4 At the time of his death Corey had two semicircular marks on the left side of his head. They are depicted in a number of the post mortem photographs which were tendered by the Crown in support of the count charging the prisoner with assault occasioning actual bodily harm. They are noticeable injuries consistent with having been caused by the same object. In the course of an interview conducted with police on 26 February 1998 the prisoner was asked about these marks. He said that two days prior to the child's death Corey and his mother had been in his, the prisoner's caravan. Cheryl Jessel left the two briefly and Corey started crying. The prisoner said he threw a tube of ointment at Corey twice. 5 The Crown does not accept, having regard to the appearance of the injuries, that they were caused by throwing the tube at the child. The Crown submits that it is inherently unlikely that had the tube been thrown the cap would on both occasions have come into contact with the child's forehead producing the appearance of these injuries. The Crown submitted that the injuries were consistent with a finding that the tube had been used as an instrument and not thrown at the child. If it be a circumstance of aggravation that the tube was used as an instrument, as distinct from being thrown at the child, I could only so find if I were satisfied of that fact beyond reasonable doubt. I am not so satisfied. In my view little turns on this aspect. I sentence the prisoner upon an acceptance of the account he gave the police in his interview, namely that on two occasions he threw the tube at the child. On each occasion it appears that the hard plastic cap of the tube came into contact with the child's forehead. Significant impressions in each case were left. Objectively the offence is a serious one made the more so because the prisoner twice threw the tube. 6 I turn now to the manslaughter of Corey Jessel. On 25 February 1998 the prisoner returned to the caravan park after a game of touch football. He was met by Cheryl and Corey at the entry to the park. Together they went to the prisoner's van where he gave Corey a piece of bread to eat. Corey started crying and the prisoner told Ms Jessel to take him back to their van. She did so putting Corey to bed. She patted him on the head for a little time and then left the bedroom section of the caravan and started watching television. Corey continued to cry. The prisoner walked over to Ms Jessel's van. He stood by the window located above the bedroom section of the van and called out to the child "Bloody hell, go to sleep". He then walked around and entered the van and made straight for the bedroom. 7 At the trial there was an issue concerning the events which took place immediately after the prisoner entered the bedroom. The account given by Cheryl Jessel differed to that offered by the prisoner in the course of his two electronically recorded interviews with police. As I explained in my reasons for judgment, while I considered Ms Jessel to be a generally consistent historian, in instances where her recollection differed from that of the prisoner, I approached the matter upon an acceptance of the prisoner's version. Consistent with that view I find that the prisoner walked straight over to Corey as he lay on the bed and punched him forcefully in the chest with his right fist. The blow caused Corey obvious and immediate distress. 8 The prisoner told the police that he had punched Corey because he would not stop whingeing. He said that he had not meant to hit the child as hard as he did, he had done so out of frustration. He said he left the van immediately after punching the child. He returned to his own van and then determined to go back and check if Corey was all right. This detail it seems to me was an indication of the prisoner's realisation of the severity of the blow. In the course of his first interview with Detective Hutchinson he was asked what had happened when the punch connected and he said: "He didn't believe it, that's when I walked out and I came back and I checked him and he was gasping for air." 9 On the prisoner's return to the van it appears that he shook Corey vigorously. He described this episode in a further interview with Detective Hutchinson conducted on 19 March 1998: "Corey was crying, I walked into his bedroom, punched him in the chest, standing up he was laying down, then I went back home, then I came back a couple of seconds later and I seen him there gasping for air and then I put him on my lap and shook him and his head was going around and around and then we took him out and put him on the lounge, on the lounge room floor. And then I went to a bloke's place to see if he had a phone to ring the ambulance."