New South Wales Court of Criminal Appeal CITATION : Hill v R [2003] NSWCCA 16 revised - 28/11/2003 HEARING DATE(S) : 10/12/02 JUDGMENT DATE : 23 September 2003 JUDGMENT OF : Meagher JA at 1; Hulme J at 13; Hidden J at 83 DECISION : 1. Grant leave to appeal against sentence; ; 2. Allow the appeal against sentence; ; 3. Quash the sentence imposed on the Applicant by Ireland AJ on 2 November 2001; ; 4. Sentence the Applicant to imprisonment for 6 years, including a non-parole period of 4½ years, both such periods to commence on 25 May 2002.; On 28 November 2003 the Court corrected the order herein by substituting 25 May 2000 as the commencing date of the Applicant's imprisonment and non-parole periods. CATCHWORDS : CRIMINAL LAW: Evidence - Credibility - Satisfaction of burden of proof - Findings in aggravation of sentence - Parity M v R (1994) 181 CLR 487 CASES CITED : Fox v Percy (2003) 77 ALJR 989 Beale v GIO of NSW (1997) 48 NSWLR 430 R v Wilkinson [1999] NSWCCA 248 Paul Geoffrey Hill PARTIES : v Regina FILE NUMBER(S) : CCA 60739 of 2001 COUNSEL : Applicant: C B Craigie SC, C Loukas Crown: E Wilkins SOLICITORS : Applicant: Sydney Regional Aboriginal Corporation Legal Service Crown: S E O'Connor LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 70036 of 2001 FILE NUMBER(S) : LOWER COURT Ireland AJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60739 of 2001 MEAGHER JA HULME J HIDDEN J Tuesday, 23 September 2003 PAUL GEOFFREY HILL v REGINA FACTS The Applicant sought leave to appeal against the severity of a sentence of 8 years (with a non-parole period of 6 years) imposed on him by Ireland AJ on 2 November 2001. Charged with murder, he had pleaded guilty to manslaughter, and the Crown accepted that plea. The victim was aged a little over 2 years. At the time of the victim's death, the Applicant had been living with the mother of the victim (who also entered a plea of guilty to the manslaughter of the victim). HELD per Hulme J (Hidden J agreeing), allowing the appeal: 1. The fact that the victim's mother was an accessory to the victim's death, the fact that she had much to gain by implicating the Applicant, and the fact that she had on many occasions lied about the events, all required that her evidence implicating the Applicant be scrutinised with great care. M v R (1994) 181 CLR 487; Fox v Percy (2003) 77 ALJR 989, referred to. [69 et seq.] 2. The victim's mother's credibility was so bad that Ireland AJ was not entitled to be persuaded by her beyond reasonable doubt. [75] Meagher JA ( contra ): The application before the Court was directed at attacking Ireland AJ's finding that the Applicant had exercised undue influence on the victim's mother, preventing her from providing medical assistance for the victim. This is what the victim's mother said, and Ireland AJ, as a tribunal fact, believed her. It is of no relevance that she was a bad mother, that she had treated the child abominably, or that she had lied about the matter again and again. Ireland AJ believed the version that she recited in the witness box. [8] ORDERS i. Grant leave to appeal against sentence; ii. Allow the appeal against sentence; iii. Quash the sentence imposed on the Applicant by Ireland AJ on 2 November 2001; iv. Sentence the Applicant to imprisonment for 6 years, including a non-parole period of 4½ years, both such periods to commence on 25 May 2002. IN THE COURT OF CRIMINAL APPEAL CCA 60739 of 2001 MEAGHER JA HULME J HIDDEN J Tuesday, 23 September 2003 PAUL GEOFFREY HILL v REGINA Judgment 1 MEAGHER JA: The appellant, Mr Paul Hill, seeks leave to appeal against the severity of a sentence of 8 years imposed on him by Ireland AJ in the Supreme Court at Sydney on 2 November 2001. Charged with murder he had pleaded guilty to manslaughter, and the Crown had accepted that plea. The victim was aged a little over 2 years; Mr Hill had been living with a Leanne Eriksson, who was the mother of the victim, called Tristen. Tristen met his death on 23 April 2000. 2 Mr Hill and Miss Eriksson had lived together for some months before the child's death at various addresses in Ashfield, Darlington and Mount Druitt. Both of them treated the child abominably. On 14 April 2000 there was a particularly nasty episode when the child sustained a spiral fracture to the left tibia. It was later ascertained that at about the same time there were fractures to the right humerus above the elbow, to the right seventh and eighth ribs, to the left scapula and clavicle, and a number of other abrasions, lesions and bruises on his head, chest and limbs. Nobody knows exactly who was responsible for these injuries, although it was common ground that it was either Mr Hill or Miss Eriksson. 3 Another major episode occurred four days later, on 18 April 2000, when Miss Eriksson left the child in Mr Hill's care for some forty-five minutes while she went to the nearby shops. On her return she inquired how Tristen was, only to receive the reply "I done something", and then added "I couldn't handle him crying. I threw him onto the corner of the lounge and he hit his head." This account is Miss Eriksson's, Mr Hill denying it. However, his Honour believed it, and to the requisite standard. 4 The child suffered another major trauma, on or before 23 April, but the evidence does not disclose exactly what it was or who caused it. His Honour did not, and could not find that Mr Hill was responsible for it. It was this trauma which killed the child. 5 No medical attention was sought for the child between 18 and 23 April, although such attention was badly needed. 6 It is plain beyond doubt that the child's death was caused by the absence of medical attention to a gravely ill little boy suffering from a multiplicity of severe injuries. Both Mr Hill and Miss Eriksson should have seen to the provision of that medical attention. They did not. On Miss Eriksson's evidence (which his Honour accepted) she did not do so because Mr Hill influenced her not to. 7 His Honour sentenced Mr Hill to a term of imprisonment for 8 years with a non-parole period of 6 years. Miss Eriksson, on the other hand, received a sentence of 3 years. 8 Mr Hill's application before this Court was directed basically at attacking his Honour's finding that Mr Hill exercised undue influence on Miss Eriksson preventing her from providing medical assistance for her child. However, this is what Miss Eriksson said, and his Honour, as a tribunal of fact, believed her. It is of no relevance that she was a bad mother, that she had treated the child abominably, or that she had lied about the matter again and again. His Honour believed the version that she recited in the witness box. 9 It was also submitted that by a proper application of the principles of parity and proportionality, considering Miss Eriksson's sentence, Mr Hill's sentence should be lighter. But this submission may be easily laid to rest. She made an early plea of guilty, he did not. She offered assistance to the authorities, he did not. He influenced her not to go to the doctor, she did not influence him. And, in any event, her sentence was inappropriately light. 10 It is also submitted that his Honour did not give sufficient weight to Mr Hill's deprived background. This, too, admits of a simple answer: he clearly did. 11 Finally, it is said that the sentence is manifestly excessive. I do not think so. To put an end to a child's life is an offence of extraordinary gravity. 12 The application should be dismissed. 13 HULME J: On 27 April 2000 Tristen Michael Allen Lane, then 2 years old, died. There were at least three events which may have caused or contributed to his death. 14 The first was a major head injury he sustained on or about 18 April 2000. The second was the failure of Leanne Eriksson, his mother, and the Applicant who was living with her at the time, to obtain medical treatment of Tristen between 18 and 23 April 2000. The third was further trauma to Tristen's head which was suffered within hours prior to his admission to hospital on 23 April. 15 On 25 May 2000 the Applicant and Ms Eriksson were arrested and charged with Tristen's murder. In due course they were committed for trial. The evidence before this Court does not reveal all that occurred thereafter but Ms Eriksson appeared before the Supreme Court on 2 August 2001 when she entered a plea of guilty to manslaughter. 16 On 21 August 2001, Ms Eriksson participated in a recorded interview. In the course of the interview she made a variety of assertions implicating the Applicant in the head injury Tristen sustained on or about 18 April and exonerating herself from all of the injuries which led to Tristen's death. In prior interviews with police and in numerous statements to relatives and others, she seems to have maintained that Tristen had injured himself falling down some stairs or denied any knowledge of how Tristen might have been injured. 17 On 29 August 2001 evidence relevant to Ms Eriksson's sentence was given and on 7 September 2001 Ireland AJ sentenced Ms Eriksson to imprisonment for 3 years including a non-parole period of 18 months. The commencing date of these periods was 20 August 2000, a date which reflects pre-sentence custody. The head sentence reflected a discount of 17% for a plea and 33% for assistance to the authorities by way of implication of, and giving evidence against, the Applicant. 18 On 10 September 2001 the Applicant was arraigned on a charge of Tristen's murder. He pleaded guilty to manslaughter and the Crown indicated it was prepared to accept that plea in full satisfaction of the indictment. Over a number of days evidence on the question of sentence was taken and on 2 November 2001 Ireland AJ sentenced the Applicant to imprisonment for 8 years including a non-parole period of 6 years, both such periods dating from 25 May 2000. 19 During the sentencing proceedings, it was common ground between the Crown and the Applicant that he was guilty of criminal neglect in respect of a failure to obtain medical treatment. In issue, however, was whether, in addition, the Applicant had been guilty of one or more unlawful and dangerous acts which caused injury and contributed to Tristen's death, and specifically caused the 2 head injuries to which I have referred. On this topic Ireland AJ recorded that it was common ground that the injuries must have been occasioned by the deliberate act of either the Applicant or Ms Eriksson. Ireland AJ's findings included the following:- 37. The medical evidence is consistent with Tristen sustaining a major head injury on 18 April 2000. Doctor Langlois expressed the opinion that the constellation of injuries noted during autopsy would have been inflicted ten to fourteen days before the autopsy, that is to say between 14 and 18 April 2000. The fractures had formed callus, which indicated that they were more than seven days old. Professor Harper, Professor of Neuropathology, from the Royal Prince Alfred Hospital and the University of Sydney was of the same opinion. 38. I accept it to be common ground between the medical experts that Tristen sustained further trauma to the head shortly prior to his admission to hospital on 23 April 2000. It is not possible to say precisely when this final injury occurred. 39. Doctor Neil Langlois, forensic pathologist, is of the opinion that the time interval between trauma and leakage of the cerebro-spinal fluid, which was found upon admission, could range from almost instantaneous to a matter of hours. 40. Doctor Gregory Rowle, paediatric specialist, expressed the opinion that Tristen sustained a major injury on the day of his admission to hospital and that it was very likely that there was then a pre-existing brain injury. 41. Doctor Rowle expressed the opinion that the oedema or swelling of the brain, which caused the brain stem injury leading to cardiac arrest, developed in a matter of minutes and led to an arrest within the space of at most a few hours following the injury. 42. When asked to encapsulate the complete picture which he saw as a result of the whole of the history, that is to say the medical history relating to treatment, Professor Harper said this: "I believe between ten and fourteen days before this child died something happened which stopped the oxygen to his brain at the same time he suffered a head injury, which resulted in him developing a subdural haematoma. The lack of oxygen has caused very, very severe brain damage to the extent that had nothing else happened to this child he would have been permanently debilitated and would have been virtually a vegetable. Certainly within four days (sic) of the death based mostly upon other evidence not my own evidence, it appears the child suffered a second injury which resulted in a fracture of the petrous temporal bone, which caused leakage of CSF, and given the leakage I saw within the older subdural haematoma it is also likely that resulted from his old head injury. The combination of both of the brain damage or oedema, there is absolutely no space left within the skull for the brain to continue to function or for the blood to flow into the brain and that forced the rain down through the base of the skull, it is called the foramen magnum, and that is the site where our bodies meet and respiration is controlled, and if you compress that, everything stops and that is the final common pathway of this child's death." 43. I am satisfied that within a period, probably of the order of 4 hours, prior to admission to Royal Prince Alfred Hospital on 23 April 2000, Tristen sustained a second injury which caused the oedema which, in turn, resulted in cardiac arrest. This second injury may be considered to be the direct cause of death. 44. The events which took place on the morning of 23 April are to be gleaned from the evidence of Ms Eriksson and the offender. 45. I do not propose to review that evidence in detail. Suffice it to say that it does not, in my view, permit a finding beyond reasonable doubt that the offender inflicted a further injury on that occasion so as to constitute manslaughter by an unlawful and dangerous act. 46. The evidence makes plain, however, that over a period of some five days the offender failed to seek, for the child Tristen, medical assistance and treatment of which he was obviously in dire need, and further that he influenced Ms Eriksson to do likewise. 47. I am further satisfied on the criminal standard that on 18 April 2000 the offender so injured the child Tristen as to cause the multiple injuries, with the exception of the prior fracture to the tibia, as were disclosed on post-mortem examination, as well as the brain damage of such severity as to result in the degree of permanent debilitation described by Professor Harper as "virtually a vegetable". When taken together with the influence exercised by the offender to deter Ms Eriksson from seeking medical treatment, these are circumstances of the gravest aggravation." 20 In support of the appeal it was submitted that Ireland AJ erred in:- (i) Sentencing the Applicant on the basis of an aggravating feature, being that on 18 April 2000 the Applicant so injured the child as to cause the multiple injuries and brain damage. The determination of this aggravating feature was not reasonably open on the evidence. (ii) Sentencing the Applicant on the basis of an aggravating feature, being the influence exercised by the Applicant to deter Ms Eriksson the co-offender from seeking medical treatment for the child, Tristen. The determination of this aggravating feature was not reasonably open on the evidence. (iii) Following upon the above errors, there was consequent error in not applying the principles of parity and proportionality so as to achieve a proper relationship with the sentence imposed upon the co-offender. (iv) That his Honour was in error in giving insufficient weight to the circumstance of the Applicant's deprived background social, educational and intellectual background in determining issues of moral culpability and deterrence. (v) His Honour's determination of the appropriate sentence was manifestly excessive in the circumstances. 21 The evidence of the "aggravating features" was primarily that of Ms Eriksson. In substance, the first two of the submissions boil down to the proposition that his Honour should not, reasonably, have been satisfied to the requisite standard by her evidence. Appearing for the Applicant Mr Craigie acknowledged that the Applicant faced a high hurdle. For his Honour had also said:- "19. What is said by (Leanne Eriksson's half sisters, Shonna and Julia Parker, their close friend Kylie Quinn and other close friends Susie Tavares and Dominic Natalie) and by other persons, who have made statements to investigating police, satisfies me to the relevant degree that, following commencement of the relationship between Leanne Eriksson and the offender, Tristen was subjected to rough handling and physical abuse by the offender which was evident in bruising and abrasions observed by Shonna and Julie Parker and in particular Susie Tavares and Kylie Quinn. 23. On about Friday 14 April 2000 when residing with the offender's sister at Golden Grove Street, an incident occurred in which Tristen suffered a spiral fracture of the left tibia. The offender has given inconsistent versions of events associated with this incident. 32. The credibility of Leanne Eriksson has been the subject of careful analysis in helpful written and oral submissions by Mr Zahra. It is apparent that at a time when she was in love with the offender, and desired to continue and develop her relationship with him, that she gave to hospital staff and authorities versions of events which sought to exculpate the offender. 33. I am satisfied that the offender was the dominant partner in their relationship and that in failing to seek medical attention for Tristen, Ms Eriksson was largely influenced by the offender and the dire consequences he encouraged her to believe would flow from any investigation by authorities of the origin of the child's injuries. 34. I am nevertheless satisfied that in making her statement of 21 August 2001, and in giving her evidence before me on 12 and 13 September 2001, Ms Eriksson was endeavouring to tell the truth to the best of her ability and recollection. 35. I do not accept the offender as a witness of truth. His denial of any maltreatment of Tristen and his denial of a close and intimate relationship with Leanne Eriksson are both contradicted by the unchallenged statements of independent witnesses to whom I have referred with regard to his conduct and by the letters which he wrote to Ms Eriksson as to the depth of his feelings and affection for her. 22 However, just as the verdict of a jury who has seen and heard the witnesses is liable to be overturned in this Court, so may be the findings of a sentencing judge. Thus, as did the submissions on the part of the Appellant, I find it necessary to go to the evidence in some detail. 23 An appropriate starting point in an examination of whether his Honour was entitled to accept Ms Eriksson as a witness of truth is the medical and pathology evidence. It is at least arguable that it is impossible to reconcile Ms Eriksson's own evidence with this. 24 The first event of note in this area is that Tristen was taken to hospital on 15 April 2000 where he was seen to have a broken tibia in his left leg. The tenor of the evidence of the doctor and nurses who examined him on that occasion was - and there is no reason to doubt their evidence - that at that time he had no other bone injuries. 25 The next time he was seen by anyone with medical or quasi-medical knowledge was when ambulance officers arrived at the unit occupied by the Appellant, Ms Eriksson and Tristen at about 10.55 am on Sunday 23 April 2000. They observed that Tristen was then without pulse. One of the doctor's reports indicates that he remained in this state at least from 10.56 to 11.18 am. 26 Tristen was taken to Royal Prince Alfred Hospital and then moved to the Westmead Childrens' Hospital where for some days he was placed on a life support system until 27 April. Shortly after that was switched off, he died. Post mortem examination showed that the injuries at that time, referred to by his Honour at paragraph 37 included, in addition to many bruises, fractures of the 7th and 8th ribs on the right side, a fracture of the right humerus, fractures of the left scapula and left clavicle, and of the left tibia. All of these bone injuries showed signs of natural repair. 27 One of the witnesses was Dr Rowell, a consultant paediatric physician who examined Tristen on his admission to Royal Prince Alfred Hospital. He observed multiple superficial bruises and abrasions on the head, neck and chest and bruises along both sides of the jaw. The bruises on the front of the chest were many and small. There was also a superficial abrasion on the right upper eyelid and superficial lacerations and bruises at the superior and inferior attachments of the right ear, caused probably a couple of days previously. The bruises were of various ages, some recent. Reddening of the left ear was consistent with pulling or a blow. 28 There was bruising and swelling in the left supraclavicular fossa. The symptoms were compatible with the fracture of the left clavicle having been there for some days. 29 There was clear fluid found in the left ear consistent with CSF leakage, this leakage suggesting a fractured base of the skull. The radiologist reported opacification of the left mastoid air cells consistent with the clinical diagnosis of a fractured base of the skull. Such a leakage normally leads to meningitis within a matter of hours to days or a week or two. 30 A CT brain scan showed diffuse cerebral oedema involving most of the left hemisphere of the brain. In his original report Dr Rowell's opinion was that on the morning of 23 April Tristen suffered a severe diffuse brain injury producing massive cerebral oedema and also suffered a fractured base of the skull. The cerebral oedema provoked the final swelling of the brain. In Dr Rowell's view, this in turn compromised brain stem function and caused cardiac arrest. 31 Dr Rowell said it was this injury which caused death and it occurred within at most a few hours of Tristen's presentation at hospital. The injury could have resulted from a blow or shaking, or the oedema could have been worsened by a period of deprivation of oxygen to the brain. The latter is least likely cause: A blow to the head is the most likely. The CT scan excluded further haemorrhaging as causative of Tristen's death. An absence of recent retinal haemorrhages argued against shaking. 32 Asked to assume that a later CT scan showed quite an increase in the cerebral oedema, Dr Rowell said that that would indicate that the injury occurred immediately (by which I take him to mean very shortly) before presentation at the hospital. 33 In evidence Dr Rowell was asked to assume also that Tristen had suffered an injury as a result of striking his head on 18 April. He said that he could not exclude the possibility of two injuries but he maintained that it was on Sunday 23 April that Tristen sustained the major injury that caused the condition Dr Rowell saw in the hospital that day. There was insufficient evidence to indicate that the subdural haemorrhage caused the oedema and compromise brain functions and subsequent cardiac arrest and indeed evidence to the contrary. However, the previous injury could have sped up the time between the traumatic event on 23 April and the oedema it caused. In general an injury sufficient to cause cerebral oedema which was sufficient to cause compromise of brain stem function and cardiac arrest would have to be substantial although the earlier injury may have meant that lesser force than usual was required. 34 Dr Jacobe was a part-time staff specialist in paediatric intensive care. He had been involved in Tristen's care from the afternoon of 23 April. Apart from injuries which were described by others, Dr Jacobe said there were multiple bruises apparently of different ages on Tristen's anterior and posterior trunk. Dr Jacobe opined that it was likely that in the hours prior to Tristen's presentation he suffered a severe cerebral injury. 35 On 24 April Dr Wilkins, a senior staff specialist in paediatric intensive care took over from Dr Jacobe and examined Tristen. Dr Wilkins observed, inter alia, a bruise and abrasions on the back of Tristen's head, a bruise on his back and one at the base of his penis, bruises on his abdomen and chest and a distended, tense abdomen. He referred to X-rays showing fractures of the left clavicle, the right eighth rib and the bottom end of the humerus. A CT scan of the head showed diffuse swelling of the brain, more marked on the left, a small left sided sub-dural haemorrhage and some small contusions within the brain. 36 Dr Wilkins opined that the combination of severe brain injury, injury to the pancreas and multiple fractures could not have been sustained in a single accident and none of the fractures were of the sort that could be ordinarily sustained in trivial accidents. He said, "The child died as a direct result of the traumatic injury to his brain. … a traumatic brain injury of this severity would not be followed by any lucid interval which would delay his presentation to hospital. It is therefore my opinion that the fatal injury was sustained not more than a few hours before the ambulance was called. The appearance of most of the injuries is consistent with this." 37 Dr Michael Ryan is a consultant paediatrician whose CV indicates considerable study of child abuse and neglect. He examined Tristen on the morning of 24 April. He referred to bruises "over the front of the chest, on the face, and abdomen, which I confirmed to be adult fingermarks." In his report of 28 April Dr Ryan set out the findings of a CT scan of Tristen's head and the conclusion of a "probable left subdural haematoma, with more recent haemorrhage against the falx, and significant cerebral oedema causing effacement of the cerebral sulci, presumed base of skull fracture." He recorded that the observation of clear fluid from Tristen's left ear further supported the suggested basal skull fracture. 38 Dr Ryan said he observed multiple adult "fingermark" bruises on Tristen's face, chest and back and a laceration to the tip of Tristen's left ear which he believed was of recent origin. He said the CT scan taken at RPAH demonstrated "an acute interfalcine subdural haematoma (2-3 days old)" and a chest x-ray taken at RPAH showed a 2-3 day old fracture of the left clavicle. Dr Ryan suggested a repeat CT scan of the head be taken and this showed increased cerebral oedema and hypoxic brain injury. 39 Dr Ryan records the findings of a skeletal survey. He said that ophthalmological consultation did not reveal evidence of retinal haemorrhages. Dr Ryan quoted from a number of publications included in the quotes were that a fracture of the distal third of the clavicle is likely to be the result of shaking, that in young children rib fractures are rarely if ever the result of minor accidental trauma, have not been found after cardiopulmonary resuscitation and most are thought to result from violent shaking and that "while retinal haemorrhages are commonly associated with inflicted head trauma in 15 to 20% of cases, retinal haemorrhages will not be documented. 40 Dr Steinberg is a radiologist at the Westmead Children's Hospital. He referred to many of the fractures to which I have referred. He attributed the constellation of brain injury seen to shaking and the totality of injuries to systematic beating and abuse. 41 Professor Harper is a surgical pathologist. He reviewed sections of Tristen's brain. He concluded that a subdural haematoma on the left side of the brain had occurred about 10 to 14 days prior to death and there appeared also to be recent bleeding within the haematoma suggesting recurrent haemorrhage. Such an event is a frequent and well known phenomenon not necessarily associated with a second head injury. Professor Harper said that the most severe brain damage related to a lack of oxygen or glucose to the brain and changes caused by this also appeared to be 10 to 14 days old. He saw some features which "could be related to the diffuse hypoxic (lack of oxygen) damage or could be due to a head injury with a rotational component, the latter being more likely. 42 In evidence before Ireland AJ, Professor Harper said that the diagnosis to which I have referred was based solely on an examination of the brain and photographs together with some preliminary information that the victim could have been shaken. At the time of giving evidence Professor Harper had however seen information from other doctors and he said that this helped to give a more complete picture. He adhered to the view that Tristen had had brain damage caused by lack of oxygen and swelling to the brain and that both had occurred between 10 and 14 days before his death and said that the only issue between him and Dr Rowell was that Professor Harper saw the subdural haematoma and the hypoxic encephalitis as more significant. Professor Harper accepted what was said to be the opinions of Dr Ryan and Dr Rowell that the difference in the two CT scans indicated a significant trauma within hours of presentation at the hospital. He gave the following evidence:- "Q. The particular trauma of the morning within hours of presentation is in fact the trauma that caused death? A. Yes, the child then developed brain swelling and the swelling of the brain led to the arrest, his cardiac arrest …" – T230 43 The transcript records Professor Harper expressing other views on the topic of when the most recent trauma occurred. Taken to what was said to be Dr Rowell's view that it could have occurred some minutes to hours before Tristen's fitting, Professor Harper said that from the pathological point of view, looking down a microscope, it was impossible to judge the time between the limits of zero to 24 hours. The Professor was asked what inferences could be drawn from the appearance of CSF in Tristen's ear. He said:- "That a second injury has occurred relatively recently because of the CSF bleed. Leaking of CSF leads to infection in the brain after one or two, maybe three days, and there was no evidence of infection in the brain so it is suspected this fracture of the skull has occurred maybe one or two days at the most but as early as minutes or hours from the time the child was seen in the hospital." 44 Later Professor Harper agreed with what was said to be counsel's understanding of his evidence that it could be anything from minutes to hours after the trauma that the child went into cardiac arrest. Shortly afterwards Professor Harper gave the evidence which is quoted in paragraph 42 of Ireland AJ's remarks on sentence. Then in further cross-examination there was the following exchange:- "Q. It was put to Dr Rowell this was probably a re-bleed. His view is it was trauma, not a re-bleed, from his clinical observations? A. Yes. Q. You have indicated just a moment ago in relation to what his Honour asked you from the pathway causing death you are of the view it was a significant trauma within hours of presentation? A. Yes. One thing I did omit in explaining that to his Honour was the impact of the actual cerebral oedema on the brain. The volume of the recent haematoma was not so great as to the precipitate the death but the haematoma and the oedema are usually linked and they are both linked to trauma. The oedema was emphasised in the two CT scans by the radiologist. Q. Looking all the clinical evidence, could it be put that the likely conclusion is that there was a trauma within hours? A. Yes. Q. That was - - ? A. Hours, four hours before he died. Q. And this was not a spontaneous re-bleed? A. Yes, I believe that. 45 Professor Harper also gave evidence as to the consequences of the original injury. In addition to what he said in the passage quoted by Ireland AJ, Professor Harper said :- ".. the child would have probably have had, would certainly have had a very severe mental disorder. We sometimes describe it as a vegetative state, unable to speak, communicate, feed himself, because of the severity of the brain lesion I saw, which I believe occurred between 10 and 14 days before his death." 46 There was also evidence from Dr Langlois who conducted the post-mortem examination. He said that the fractures he saw were all about the same age – certainly within a few days of one another and the evidence of healing he would not have expected to see in less than a week of the injury. He said that the absence of evidence of meningitis suggests that the fracture that led to the leak of CSF had occurred within a short time, up to a day or so, prior to the leak being detected. Dr Langlois said that during the post mortem he looked for a fracture at the base of the skull but could not find one. 47 Dr Langlois said that the subdural haemorrhage did not cause death. He went on to say that Tristen had a necessarily fatal head injury. 48 Dr Langlois said that there were indications in the form of a number of injuries to the scalp which suggested that, after the original subdural haematoma there had been at least one further incident of trauma at multiple sites. The second subdural haematoma could have been due to shaking. So could the first. The second bleeding could have occurred over a few days or within hours of presentation at hospital. It could have occurred spontaneously, been the result of a minor episode of trauma or a severe episode of trauma. However, he said he did not regard the re-bleed as of significance. In his words "what is of significance is 10-14 days before I performed the autopsy there had been a severe head trauma episode resulting in irreversible brain damage and an associated sub-dural associated haemorrhage." 49 In his report under the Coroners Act, he said the correct cause of death was head injury with bleeding having occurred around 15 April and re-bleeding about 23 April. He said that microscopic examination of the brain revealed changes following a lack of oxygen supply which would have occurred when breathing failed due to the effects of the head injury before the child went to hospital on 23 April. In a supplementary report made after he had received Professor Harper's report he said the pathological changes indicated an event between one or two weeks prior to death and consequent diffuse brain damage would be expected to have resulted in a generalised loss of function such as thought and purposeful movement. He also suggested there may have been a further head injury less than a week prior to death. 50 Against this background I turn to the evidence of Ms Eriksson. In the interview she had with the police on 21 August 2001, her account of events on 23 April up to the time that Tristen commenced fitting was as follows:- "118. On Sunday morning I woke up but Tristen was awake when I woke up. Paul was still asleep. I got up and made him some Weetbix and made myself a coffee. I went in and fed him the Weetbix which he ate. I gave him a drink of cordial, I think. About half an hour later I gave him a bit of the Easter egg, which was white chocolate, which he ate. I gave him another drink. He looked tired so I propped him on the mattress of (sic) the floor but he was whinging. 119. I went out and made another coffee and when I came back in he was asleep. I was sitting there watching the music video show and Paul was awake. Tristen slept for about half an hour. When he woke up he was whinging, crying and I went out to the kitchen to get a drink or something. Paul screamed out, "Leanne, come here, quick. Fucken hurry up." 120. I rushed into the lounge room and Tristen was on the mattress, fitting, his eyes were rolling back in his head and he was stiffening up and then relaxing. He was bringing up grey Weetbix looking stuff from his mouth." 51 Ms Eriksson gave evidence in the course of her own sentencing proceedings and swore that in the interview of 21 August she was completely truthful to the best of her memory. 52 Ms Eriksson's evidence of events on the morning of 23 April given during the sentencing proceedings involving the Applicant, was that whereas there had been difficulty in feeding Tristen previously, there was no difficulty in feeding him on that morning and there appeared to be no trouble in him drinking, or eating the chocolate. On that morning all Tristen said was "mum" or "drink". He seemed alert, but sick and whingey. 53 Ms Eriksson also said that on the morning of 23 April, the Applicant was next to Tristen but she saw no interaction or attempted interaction between them prior to the commencement of the fitting. Mrs Eriksson was in the kitchen for only a brief period of time, about 30 seconds, before the Applicant called out. She agreed that during this period she heard "only Tristen whinging – the same as she had heard before she left the room". Asked then if there was any change in that and whether she heard the child cry loudly, she said "Not that I can remember". 54 Given the circumstances, it is difficult to believe Ms Eriksson would not have remembered any significant cry or noise. 55 In summary therefore, Ms Eriksson's evidence of the events of the morning of 23 April is to the effect, inter alia, that nothing which could have caused the injury of that day of which the doctors spoke occurred. Although finding, in accordance with the medical evidence, that that injury had occurred and that he could not conclude the Applicant caused it, Ireland AJ did not address what I see as these inconsistencies between Ms Eriksson's evidence and that of the doctors. 56 Nor did his Honour direct attention to the apparent inconsistency between Ms Eriksson's evidence to the effect that Tristen's condition seemed to have improved that morning such that the prior difficulties there had been in feeding him had disappeared and the evidence of Professor Harper which his Honour, in paragraph 47 of his remarks on sentence, accepted to the effect that the that the plaintiff was "virtually a vegetable". 57 And, as I have indicated, these were not the only respects in which Ms Eriksson's evidence was suspect. She had been interviewed by the police on 25 April. A transcript of that interview was not included in the Appeal papers but during the hearing of this appeal, counsel for the Applicant suggested that this Court should view the tape of that interview as Ireland AJ had had the opportunity of doing. It is in fact not clear to me that the whole tape was before Ireland AJ although the transcript of the cross-examination of Ms Eriksson makes it clear that significant passages were then played. My enquiries for the tape have so far been unsuccessful, although I have been told that substantial and time consuming editing by counsel who appeared before Ireland AJ would be required for it to be reduced to the same form in which his Honour saw it. 58 In the end, I have decided not to pursue enquiries for the original. In light of answers given by Ms Eriksson when shown the tape and the conclusions at which I have arrived, this will not, I believe, prejudice either the Applicant or the Crown. Included in those answers was evidence to the following effect. Before participating in the ERISP, Ms Eriksson knew that she had to say the Applicant was never there and thus to make something up. She prepared answers in advance, although made some parts up as the interview progressed and from her appearance in the ERISP, she had no difficulty in doing so. Her demeanour during the interview did not indicate confusion or that she was upset. Her lies included answers about the frequency that the Appellant stayed with her – about Tristen falling down the stairs at Golden Grove (i.e. where she living on and just before 23 April), about force feeding Tristen and then him starting to eat by himself, to the effect that at some time on the morning of 23 April, Tristen was "fine" and that she had woken the Applicant that morning after Tristen began fitting. 59 A number of what Ms Eriksson said were lies, e.g. about force feeding Tristen, do not seem to have had any conceivable advantage to the Applicant and Ms Eriksson was unable to explain them. 60 One topic which figured in what Ms Eriksson had to say concerned Tristen falling on, off, or near a coffee table. In the ERISP of 23 April Ms Eriksson had said that Tristen had lifted himself up and stood up on the coffee table. In evidence she said that he had not and that the reason she had said that he had, was to explain a little graze on his eye. In her statement of 21 August she referred to an occasion when Tristen was on the lounge. She heard a cry and found Tristen on the carpet between a lounge and the coffee table but he neither had any marks or bruises that she saw nor did he complain of hurt. 61 It was not only to the police that Ms Eriksson gave versions of events from which she ultimately retreated. Ms Eriksson said that she had lied to the doctor who had seen Tristen on 15 April – when he was treated for a broken leg - and to the triage nurse on that occasion, although later she said that she had not lied and her telling them the Tristen had fallen down the stairs was simply repeating what she had been told. At one stage Ms Eriksson volunteered that she lied to everyone. 62 When interviewed by Dr Jacobe on the occasion of Tristen's admission to hospital on 23 April, Ms Eriksson said that Tristen had fallen down stairs about 10 days previously. She also said that a number of days prior to admission, Tristen had climbed off a couch, stood on a table and fallen off, striking his head. To Dr Wilkins who spoke to her on a number of occasions she said that she knew of no incident that could have led to Tristen's injuries except the fall down the stairs. She repeated the falling off a table and striking his head story to Dr Ryan. 63 In evidence in her own sentencing proceedings Ms Eriksson gave as her principal reasons for lying to the police previously that the Applicant had told her to do so, to protect him and because she was scared. In evidence in the Applicant's proceedings she also gave the explanation that she was concerned also for herself in the sense that she feared she might be blamed. She said also that her feelings for the Applicant cooled some time after their arrest and while both were in custody awaiting trial. 64 The first of these reasons certainly provides a possible explanation for untruthfulness on the part of Ms Eriksson prior to the time at which her feelings for the Applicant cooled. However, Ms Eriksson could not explain why, although she had become cold in her relationship with the Applicant by December 2000, had been charged with murder and, according to her was innocent of it, she had not told the authorities of the Applicant's conduct till August 2001. As an explanation for not telling the police Tristen's injuries had been caused by the Applicant, the second reason, viz. that she feared she might be blamed, is not obviously persuasive 65 It may be inferred from paragraph 32 and 33 of Ireland AJ's remarks on sentence that his Honour accepted some explanation along the lines of that advanced by Ms Eriksson. And although his Honour did not advert to this, a desire for consistency with earlier statements may explain Ms Eriksson's failure to recant for some time after that cooling. However, these explanations do not account for any untruthfulness in Ms Eriksson's ERISP of 21 August 2001, or her evidence in the sentencing proceedings of firstly herself and then the Applicant, and it is her statements and evidence on those occasions which I find of concern. 66 On the topic of Ms Eriksson's credibility, it might be mentioned also that during the evidence she gave in her sentencing proceedings, Ms Eriksson said that while she was with Mr Hill she only had one or two drinks at any particular time while she was with him. 67 This evidence is to be compared with evidence contained in the statements of others, including Suzy Tavares and Kylie Quinn on whose statements Ireland AJ was disposed to rely. Ms Tavares said that on occasion which from her description was the day before Tristen's leg was set, Ms Eriksson was drunk and said that she had been drinking for about 3 days straight. Ms Quinn also reported Ms Eriksson being drunk on that day. Another person whose statement was tendered, Belinda Moffatt, said that shortly after the Applicant moved in to live with Ms Eriksson at Ashfied, she saw Ms Eriksson drunk. She saw her drunk again on a Sunday night in late March. In his statement Dale Sanders said that on an occasion when he drove the Applicant and Ms Eriksson from Mt Druitt to Golden Grove Street, Darlington, Ms Eriksson had been drinking and was slurring her words a bit. Again Ireland AJ did not deal with the inconsistency. 68 At the times of the accounts she gave implicating the Applicant, Ms Eriksson clearly had no substantial interest in doing so. At the very least, her blaming the Applicant for Tristen's injuries led to her receiving a much reduced sentence for manslaughter. But the inference is also available that it may well have contributed to the murder charge against her being dropped. 69 The fact that Ms Eriksson was on any view an accessory to Tristen's death, the fact that she had much to gain by implicating the Applicant, and the fact that she had on many occasions prior to 21 August lied about the events, all required that her evidence implicating the Applicant be scrutinised with great care. It is to be inferred that Ireland AJ, an experienced sentencing judge knew this. Furthermore, his Honour expressly referred to the submissions of the Applicant's then counsel directed to Ms Eriksson's credibility. 70 And had Ms Eriksson's credibility problems stopped at the time of her interview on 21 August or, possibly even just prior to her giving evidence, his Honour's decision to accept what she had to say would have been unassailable. But I find his Honour's conclusion in paragraph 34 of his remarks on sentence that "in making her statement of 21 August 2001, and in giving her evidence before me on 12 and 13 September 2001, Ms Eriksson was endeavouring to tell the truth to the best of her ability and recollection" impossible to reconcile with the inconsistency between her account of events on the morning of 23 April and the wealth of uncontradicted medical evidence which his Honour accepted to the effect that Tristen suffered further injury at that time. 71 Although there was other evidence strongly suggestive of violence on other occasions by the Applicant towards Tristen, any conclusion that he had inflicted the injury on or about 18 April depended on Ms Eriksson. In circumstances where it seems to me clear that Ms Eriksson was not being truthful before him on a very important issue, it does not seem to me that the sentencing judge was entitled to be persuaded beyond reasonable doubt by what she had to say. 72 I should acknowledge the advantage Ireland AJ had in seeing Ms Eriksson – an advantage denied to this Court. However, as was said in M v R (1994) 181 CLR 487 at 494 in the context of an appeal court being asked to set aside the verdict of a jury who had seen the witnesses - "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 73 See also Fox v Percy (2003) 77 ALJR 989 at [20] et seq. 74 To some extent I reach more easily the conclusion that his Honour erred by reason of the fact that although his Honour referred to the written submissions of counsel who then appeared for the Applicant, submissions which do raise the topic on which I rely, nowhere in his Honour's remarks on sentence does he advert to the apparent inconsistency or its consequences to the Ms Eriksson's credibility. 75 My conclusion that Ms Eriksson's credibility was so bad that his Honour was not entitled to be persuaded by her beyond reasonable doubt means that I need not pursue the question of whether, given the central importance of her evidence, his Honour was in error in not providing reasons for accepting it despite the matters to which I have referred. As to this obligation, see Beale v GIO of NSW (1997) 48 NSWLR 430 at 441 et seq. per Meagher JA. 76 I should add that in arriving at the conclusion I have, I have placed no weight whatsoever on the evidence of the Applicant. His Honour was not impressed by it and it certainly contains sufficient inconsistencies to preclude this Court forming any opinion that Ireland AJ was wrong when he said that he did not accept the Applicant as a witness of truth. 77 The conclusion at which I have arrived also means that his Honour should not have been satisfied to the requisite standard that the Applicant influenced Ms Eriksson not to seek medical treatment for Tristen. For all practical purposes, that finding depended exclusively on her evidence. Parity 78 The principal argument for the Applicant on the topic of parity was principally based on successfully challenging Ireland AJ's findings of the existence of an aggravating feature in causing most of the injuries, including brain injury, seen on post mortem. 79 However, there is another factor of significance. Leanne Eriksson suffers from an hereditary illness, Pigmental Retinal Dystrophy, the effect of which is that she already suffers from tunnel vision and night blindness and which will cause her to lose her sight. During her own sentencing proceedings she told Ireland AJ that this was likely to occur by the time she is 30. His Honour seemed to accept an expert opinion by a professor of ophthalmology to like effect. The impact on a person so afflicted of a period of custody is calculated to be substantially greater than on a person who can expect a reasonably normal healthy lifespan. For my part it is quite sufficient to account for much of the difference between Ireland AJ's starting points of 6 years in the case of Ms Eriksson and 9 years in the case of the Applicant. The discount which Ms Eriksson obtained for assistance to the authorities is not, of course, something the Applicant is entitled to. 80 There were differences in their subjective circumstances. Both had had difficulties in their upbringing and both were considered likely to serve their sentences, wholly or partly in protective custody. However, his Honour seems to have regarded Ms Eriksson as exhibiting appreciably more remorse than did the Applicant of whom Ireland AJ said "There has been no expression of contrition or remorse other than in the bare plea itself." Ms Eriksson's criminal history consisted of 2 counts of shoplifting which Ireland AJ regarded as of no significance. The Applicant's antecedents were more substantial although apart from 2 charges of assault, most were for offences of dishonesty and I would not regard these of present significance. 81 On the other hand, there can be no doubt that in arriving at his starting point of 9 years – then reduced to 8 years on account of the Applicant's plea – Ireland AJ regarded the Applicant's causing of the initial injury to Tristen, and dissuading Ms Eriksson from seeking medical attention as "circumstances of the gravest aggravation". Thus the sentence imposed reflected this finding and it is an inevitable inference that, without it, the sentence imposed would have been less. 82 Of course, before this Court interferes, it must be of the opinion that, within s6(3) of the Criminal Appeal Act "Some other sentence … is warranted in law and should have been passed". I am of that view – c.f. R v Wilkinson [1999] NSWCCA 248. Although the Applicant does not have the eye problems which Ms Eriksson has, neither was he Tristen's parent. In these circumstances, and partly influenced by considerations of parity despite the differences between the offenders, the orders I would make are these:- (i) Grant leave to appeal against sentence. (ii) Allow the appeal against sentence. (iii) Quash the sentence imposed on the Applicant by Ireland AJ on 2 November 2001. (iv) Sentence the Applicant to imprisonment for 6 years, including a non-parole period of 4½ years, both such periods to commence on 25 May 2002 83 HIDDEN J: Undoubtedly, in reviewing the findings of fact in the present case, due deference must be afforded to the advantage enjoyed by this experienced sentencing judge in having seen and heard the principal witnesses. Nevertheless, for the reasons identified by Hulme J, I am left with a grave sense of unease about his Honour's findings adverse to the applicant. Given that they were findings in aggravation of sentence, as to which the Crown bore the burden of proof beyond reasonable doubt, I am satisfied that they cannot be sustained. 84 I agree with the orders proposed by Hulme J and with his Honour's reasons. 85 THE COURT: On 28 November 2003 the Court corrected the order herein by substituting 25 May 2000 as the commencing date of the Applicant's imprisonment and non-parole periods. ***** Last Modified: 12/01/2003 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.