New South Wales Supreme Court CITATION : R v Recalde [2000] NSWSC 1247 FILE NUMBER(S) : SC 70066/1999 HEARING DATE(S) : 19/06/00, 20/07/00, 11/12/00, 20/12/00 JUDGMENT DATE : 20 December 2000 PARTIES : Regina v Pablo Daniel Recalde JUDGMENT OF : James J at 1 COUNSEL : P Lynch - Crown P Winch - Accused SOLICITORS : K Kalda - Crown M Rumore - Accused CATCHWORDS : Criminal Practice Procedure - Sentencing - Manslaughter DECISION : Sentence of 9 years imprisonment - non-parole period of 6 years THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION JAMES J WEDNESDAY 20 DECEMBER 2000 70066/99 - REGINA v PABLO RECALDE SENTENCE 1 HIS HONOUR: I will deliver my remarks on sentence and pass sentence. 2 On 19 June 2000 the prisoner Pablo Daniel Recalde was indicted before me on a charge that on or about 25 February 1998 at Budgewoi he murdered Anthony Wayne Brian Boyce. To that charge the prisoner pleaded not guilty of the murder but guilty of the manslaughter of Anthony Wayne Brian Boyce. The Crown accepted the plea of guilty of manslaughter in full discharge of the indictment. 3 The proceedings on sentence were stood over to 20 July 2000 but could not proceed on that date. Ultimately the hearing of the proceedings on sentence did not take place until 11 December. 4 The victim of the offence Anthony Wayne Brian Boyce was a baby six months old at the time of his death. He had been born on 17 August 1997. He was a child of Margaret Enid Boyce. The prisoner was not the baby's father. The prisoner and Margaret Boyce lived together in a de facto relationship for about two months down to 24 February 1998. They lived on the Central Coast at Budgewoi. Two other children of Margaret Boyce, both girls, then aged six and five years, of whom the prisoner was not the father, lived in the same household. A man named Darrell Holmes lived in a garage at the same property. 5 The pathologist who performed the post-mortem examination of the baby's body found that the baby had died between 8.30 in the evening of 24 February 1998 and 3 o'clock in the afternoon of 25 February 1998 but closer to the latter time. Half past eight in the evening of 24 February 1998 was the approximate time at which the baby's mother went to bed that night, the baby then being alive and generally well. 6 Shortly after 3 o'clock in the afternoon of 25 February 1998 the baby's mother, in a distressed state and carrying the baby in her arms, arrived at a next door neighbour's house. The baby was already dead. The baby's mother, Margaret Boyce, was interviewed twice by police on 25 February 1998. In the two interviews she gave conflicting accounts of what she said had happened on 24 and 25 February 1998. 7 In the proceedings on sentence a statement of facts prepared on behalf of the Crown was admitted into evidence without objection. In this statement of facts the two accounts given by Margaret Boyce on 25 February 1998 were summarised in a way which was not the subject of any criticism in the proceedings on sentence and the following summary of the two accounts is derived from this statement of the facts. 8 In the first account Margaret Boyce said that on the evening of 24 February she accidentally burned or scalded the baby by spilling hot tea or coffee on him. She succeeded in settling the baby down. After he went to sleep she held him for several hours. She put the baby to bed in the early hours of the morning and then went to bed herself. The following morning, the morning of 25 February, she checked the baby a number of times and did not notice anything wrong. In the afternoon she checked the baby again and then thought something was wrong. It was then that she took the baby to the next door neighbour's house. In this account Margaret Boyce made no mention of her partner, the prisoner. 9 In her second account Margaret Boyce said that she had lied to the police in her first account. In the second account she said on the evening of 24 February she had gone to bed between 8.30 and 9 o'clock leaving the baby asleep on a lounge. Apart from some minor bruising the baby was well and, in particular, had not suffered any burn injury. 10 On 25 February she woke up at about 5.30 in the morning and went into the kitchen of the house. The prisoner was in the kitchen. The prisoner told Margaret Boyce that he had burnt the baby. Margaret Boyce did not ask the prisoner how this had happened. She went to the doorway of the baby's bedroom and looked in. She saw the baby was lying in his cot. She did not enter the baby's room. She assumed that during the night the prisoner had moved the baby from the lounge room to his cot. The prisoner returned to bed. 11 Margaret Boyce spent the morning in various activities, including taking her daughters to school, mowing the lawn and doing some housework. During the day a number of friends arrived at the house, stayed for short periods and left. None of these visitors saw the baby. About midday Margaret Boyce lay down and fell asleep. About 3.30 she was woken up by the prisoner, who told her something was wrong with the baby. She went into the baby's room and picked up the baby, saw a large burn on his forehead and found that he was lifeless. 12 I have now concluded my summary of the two conflicting accounts given on 25 February 1998 by Margaret Boyce. 13 The post-mortem examination on the baby's body was performed on 26 February 1998. The post-mortem examination revealed the following injuries: (a) a scald on the right side of the face; (b) a fracture of the right occipital bone; (c) bilateral subdural haemorrhage; (d) optic nerve and retinal haemorrhages; (e) recent subarachnoid haemorrhages; (f) a healing rib fracture; (g) multiple finger type bruises on the face and trunk. 14 In the pathologist's opinion the injuries he observed could not have been caused accidentally. In the pathologist's opinion the cause of death consisted of the combined effects of shaking the baby and an impact head injury. 15 On 25 February the prisoner left the house in which he had been living with Margaret Boyce. He was arrested in April 1998 but only in relation to outstanding warrants for other offences. He was not arrested and charged with the murder of the baby until 25 June 1999. After he was arrested he declined to be interviewed by police concerning the death of the baby and, until shortly prior to entering his plea of guilty to manslaughter, he had not made any admissions to the police or to the prosecuting authorities. 16 The prisoner was in custody from 25 June 1999 to 30 September 1999 when he was released on bail. He remained on bail until he pleaded guilty to manslaughter and he has been in custody ever since. I will make the sentence I impose commence from 19 June 2000 and take into account that the prisoner spent a discrete period of three months five days in pre-sentence custody. 17 I have already referred to the two conflicting accounts given by Margaret Boyce of what happened on 24 and 25 February. Margaret Boyce, although subpoenaed by the Crown, did not attend at Court on 19 June 2000 and her non-attendance and the Crown's lack of knowledge of her whereabouts and hence the inability of the Crown to call her as a witness constituted one of the reasons for the Crown being prepared to accept a plea of guilty to manslaughter in full discharge of the indictment. 18 In the proceedings on sentence a statement of facts prepared on behalf of the prisoner and signed by the prisoner was tendered by counsel for the prisoner and admitted into evidence without objection by the Crown. The prisoner went into the witness box and swore that what was asserted in the statement of facts was true. There was no cross-examination of the prisoner by the Crown Prosecutor. I was informed by both counsel that what was set out in the statement of facts was in accordance with the version of the facts which had been conveyed to the Crown on behalf of the prisoner shortly before he entered his plea of guilty to manslaughter. 19 I will set out the statement of facts in full: "On 24, 25 February 1998 Mr Recalde was at 56 Scenic Drive, Budgewoi where he lived with Margaret Boyce and her children, Mishanne, Erin and Anthony. Darrell Homes shared the house and lived in the garage. Late in the evening Mr Recalde was the only person awake in the house. The baby Anthony was asleep on the lounge in the lounge room. There was an electric lamp without a shade on the arm of the lounge. The lamp was switched. Mr Recalde had a shot of heroin in the lounge room. It was late in the night of 24 February or in the early hours of the next morning. He became unconscious for a short while. He fell over and knocked the lamp. When he woke up the bulb of the electric lamp was resting against the baby's forehead. It was burning him. Mr Recalde picked the baby up and took him to the kitchen. A wet tea towel was used to try and comfort the baby who was distressed due to the burn. Some time later Mr Recalde was holding the baby in his arms. He went to the kitchen to boil water in preparation of another shot of heroin. While he was doing this some boiling water spilled on Mr Recalde's bare chest. He jumped. He threw the baby onto the kitchen bench. The baby hit his head hard on the bench and then fell onto the floor. He was quiet. Mr Recalde then put him into his cot in the bedroom. He knew the baby was hurt but did not check the baby until later in the afternoon. When he did check the baby was cold to touch. At that stage Mr Recalde woke Margaret Boyce and told her there was something wrong with the baby. After that Mr Recalde tried to make a phone call from a public phone but it was busy. He rode his motorcycle to the phone booth and back. When he returned to the house he was told that the police had been called. Warrants for his arrest were in existence and he had drugs in his possession. He left the scene. Some days later Mr Recalde and Margaret Boyce went together to the Byron Bay area where he was eventually arrested." 20 In the hearing of the proceedings on sentence I indicated that I had misgivings about this statement. It seems to me that parts of it lack plausibility and parts of it are difficult to reconcile with the opinions expressed by the pathologist who conducted the post-mortem examination and by the expert paediatricians who supplied reports to the Crown. The statement offers no explanation of a number of injuries on the baby's body which were observed by the pathologist and the statement leaves a number of questions unanswered. 21 I recognise that there were serious difficulties in the way of the Crown establishing what really happened on 24 and 25 February 1998. The baby's mother gave the police two conflicting accounts of what she had observed and did not claim in either account that she had herself observed the prisoner in any way injure the baby. The baby's mother failed to appear on the date fixed for the commencement of the trial and her whereabouts were then unknown. She may still be favourably disposed to the prisoner but, on the limited evidence available, I do not make any finding on this matter. 22 None of the visitors to the house on 25 February 1998 observed the prisoner ill-treating the baby or even saw the baby. The prisoner has not made any admissions to police or the prosecution authorities, apart from giving the version of events set out in the statement of facts signed by him. What he has said to other persons about the death of the baby has been guarded. In seeking to prove any facts more adverse to the prisoner than those contained in the statement of facts the Crown would have had to discharge the burden of proof beyond reasonable doubt. 23 In the circumstances, I am bound to put aside any misgivings I might feel and to sentence the prisoner on the basis of the facts in the statement of facts which he has sworn to be true and upon which the Crown has not sought to cross-examine him. 24 According to this statement of facts, the burn on the baby's forehead was caused by the prisoner unintentionally knocking over a light. The baby received its fatal injuries when the prisoner threw the baby on to a bench in the kitchen. As the Crown has accepted a plea of guilty to manslaughter and I am sentencing the prisoner for the offence of manslaughter and not murder, I must sentence him on the basis that in throwing the baby the prisoner did not intend to kill the baby or to inflict any really serious bodily injury on the baby. 25 From the nature of the baby's injuries I am able to infer beyond reasonable doubt that the prisoner threw the baby with considerable force. The act of throwing was not premeditated and happened after boiling water had spilled on the prisoner's bare skin. 26 A circumstance of aggravation is that, although the prisoner knew the baby was hurt, he did not seek medical attention for the baby and did not check the baby until the following afternoon. At the time of committing the offence the prisoner was affected by drugs and was engaged in the process of preparing drugs to administer to himself. 27 The prisoner's subjective circumstances are set out in a pre-sentence report, in a report by Dr Jonathan M Carne, psychiatrist, who saw the prisoner on 18 August 2000 and a report by Mr Gregory Fathers, psychologist, who saw the prisoner on 19 July 2000 and I have taken all of those reports into account. 28 The prisoner was born on 4 September 1974. He was accordingly twenty-three years old at the time of committing the offence and is now twenty-six years old . The prisoner was born in Australia but his family is of South American origin. He was brought up strictly but there is no evidence that he was subjected to any emotional or physical abuse. He was a slow learner at school and had difficulty making friends. When he was about thirteen years old his father died. His behaviour deteriorated after his father's death and under the influence of older friends he developed a dependency on cannabis, heroin and amphetamines which led to involvement in criminal activities. He left school at the age of fifteen years, having made little progress. After leaving school he successfully completed a number of TAFE courses in panelbeating, spraypainting, mechanics and fibreglassing. He has been employed as a cabinetmaker's assistant and in fibreglassing but he has also had periods of unemployment. He had been unemployed for some time at the time he committed the offence. 29 The prisoner's mother has maintained contact with her son by regularly visiting him in prison and she attended the hearing of the proceedings on sentence. 30 Before entering into his relationship with the baby's mother the prisoner had a relationship for about four years with another woman, who, like Margaret Boyce, was several years older than the prisoner and had a number of children. During his relationship with Margaret Boyce, both he and she were regular heavy drug users. 31 Doctor Carne found no evidence that the prisoner suffered from any psychiatric illness. The prisoner has a previous criminal history with a number of convictions for offences of dishonesty, drug offences and driving offences and he has served short terms of imprisonment. In 1996 he was convicted of assaulting by head-butting the thirteen year old son of the woman with whom he was then living. 32 When he was in prison before he was released on bail, the prisoner was seriously assaulted by other prisoners. Since this assault he has, while in prison, been subjected to a form of protective custody known as 'strict protection non-association'. According to a letter written by the prisoner which was not challenged by the Crown and which I am prepared to accept, the prisoner is confined to his cell 24 hours a day for all but twenty minutes of each day. He cannot undertake any employment or attend any classes. At night he is verbally abused by other inmates yelling at him from their cells. I accept the prisoner will serve the sentence I impose on a strict form of protection and that this is a more than usually onerous form of custody. 33 While in custody the prisoner has been on a methadone programme for drug addiction. According to Dr Carne's report, the prisoner has hepatitis C and I accept that he does. 34 The prisoner pleaded guilty and I give credit for his plea of guilty. I accept that he pleaded guilty as soon as the Crown indicated it would be prepared to accept a plea of guilty to manslaughter. 35 There was in my opinion a strong circumstantial case against the prisoner. The pathologist examined the baby's body on 26 February 1998 and found the injuries which I have described. The pathologist and the expert paediatricians consulted by the Crown were firmly of the opinion that the injuries to the baby could not have been caused by the baby accidentally injuring himself. If the baby's mother was eliminated, the prisoner was the only person who would have had the opportunity of inflicting the injuries. On the other hand, it is true that the case against the prisoner was circumstantial and that the baby's mother was herself a drug user, had given conflicting accounts of what she said had happened, had not claimed to have observed the prisoner inflict any injury on the baby and had failed to come to Court for the prisoner's trial. At the time of entering his plea of guilty to manslaughter the prisoner knew the baby's mother had failed to come to Court. 36 While I accept that the prisoner should receive some credit for his plea of guilty I would not accept the submission made by counsel for the prisoner that the present case comes within the principle discussed in R v. Ellis (1986) 5 NSWLR 603, as being a case where, were it not for the disclosure by the person coming forward for sentence, it was unlikely that guilt would have been discovered and established. In the present case, in my opinion, it is not correct that, but for the prisoner coming forward, it was unlikely that his guilt would have been discovered and established. I have decided that because of the plea of guilty I should discount the sentence I would otherwise have imposed by about ten per cent. 37 In sentencing the prisoner I take into account the prisoner's age. I accept that he experiences some remorse. He has some prospects of rehabilitation. He has family support from his mother and he will be serving the sentence on a strict form of protection. I take into account that the prisoner served a discrete period of pre-sentence custody of three months five days. 38 I find special circumstances within section 44(2) of the Crimes (Sentencing Procedure) Act in the prisoner's youth, his drug addiction, the fact he will serve his sentence in strict protection and his need for a proportionally longer than usual period of supervised liberty after he is released from prison. 39 I was referred to number of sentencing decisions for the offence of manslaughter, which illustrate the wide range of sentences which have been imposed for this kind of offence. I was referred by counsel for the prisoner to the decision of Justice Studdert in R v Howard 31 August 2000, where his Honour imposed a sentence of seven and a half years with a non-parole period of five and a half years. 40 The Crown referred me to number of decisions. One of the decisions the Crown referred me to was the decision of the Court of Criminal Appeal in R v Murdoch (unreported) 10 December 1998, dismissing the prisoner's appeal against a sentence imposed by Justice McInerney. However, Murdoch's conduct involved deliberate, calculated abuse of a child, including placing the child under a cold shower on a freezing day, and the facts which the Crown has accepted in the present case are less serious than the facts in Murdoch's case. 41 Mr Recalde, for the offence of manslaughter I sentence you to imprisonment for nine years commencing on 19 June 2000. I set a non-parole period of six years commencing on 19 June 2000 and expiring on 18 June 2006. The earliest date on which you will be eligible for release on parole will be 19 June 2006. ********** Last Modified: 02/14/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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