R v WEBB [2002] NSWSC 618

New South Wales Supreme Court

CITATION : R v WEBB [2002] NSWSC 618 FILE NUMBER(S) : SC 70065/01 HEARING DATE(S) : 27 June 2002 JUDGMENT DATE : 28 June 2002

PARTIES : Regina Daryl Raymond Webb JUDGMENT OF : Hulme J at 1

COUNSEL : Mr L Gray - Crown Mr R Tonner - Prisoner Crown: SE O'Connor SOLICITORS : Director Public Prosecutions Prisoner: TA Murphy Legal Aid Commission DECISION : Term of imprisonment for a period of 7 1/2 years with a non-parole period of 4 1/2 years. Both periods shall date from 30 September 2000. The Prisoner is eligible for parole on 29 April 2005.

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J

Friday 28 June 2002

700065/01 REGINA v Daryl Raymond WEBB

SENTENCE 1 HULME J: On 27 August 2000 Chloe Webb suffered a blow to her forehead. Within half an hour or so an ambulance arrived and the child was found with a lump and bruise on its forehead, not to be breathing, and cyanosed around the mouth area. Despite whatever attention the Ambulance Service could give, she remained unconscious and unresponsive. She was transported to hospital and placed on a life support system for twenty-four hours. During this time there were no signs of cerebral function, and on the afternoon of 28 August she was extubated and declared dead. Chloe had been born on 3 December 1999. 2 Dr Vimpani, a consultant paediatrician with experience in child protection, is of the view that the most likely precipitant for the chain of events leading to Chloe's death was a forceful contact between the front of her head and a flat surface. There was no bone fracture but Dr Vimpani's view was that the blow would have been of some force and of sufficient severity to have resulted in her losing consciousness and to stop breathing. 3 Professor Lyons, a forensic pathologist, was of the view that bruising seen on the forehead and intracranial injuries observed on post mortem were the result of the non-accidental application of blunt force between the forehead and another surface. The degree of force was almost certainly sufficient to cause unconsciousness and acute subdural haematoma. 4 When interviewed by police on 27 August 2000 the prisoner gave an account of events calculated to exclude any responsibility on his part. He acknowledged that only he and five children under six years old were present in the house at the time. He said that he was in bed watching television. Chloe was in her cot, crying. He left her to go to the kitchen and when he returned she had froth coming from her mouth and seemed lifeless. He called an ambulance and tried to give mouth to mouth resuscitation. 5 He was arrested and charged with murder on 30 November 2000. He has been in custody ever since. 6 He was committed for trial in September 2001. An indictment charging the prisoner with murder was presented on 24 August 2001 and he was arraigned on 5 October 2001. He pleaded not guilty and the matter was stood down for hearing on 25 March 2002. Because I was otherwise engaged, the proceedings did not commence until 27 March, and the prisoner pleaded guilty to manslaughter, a plea which the Crown was prepared to accept in full discharge of the indictment. The Crown accepted the plea upon the basis that Chloe's death was caused by an unlawful and dangerous act. At that time the defence was contending that the basis of manslaughter was criminal negligence, but when yesterday the matter was listed for determination of facts relevant to sentence I was informed that the prisoner was content to have the matter dealt with on the basis contended for by the Crown. 7 On 28 March some material was tendered; yesterday more evidence was given and submissions made, and I stood the matter over until today. 8 Prior to August 2000 the prisoner and Chloe's mother had been living together for some five months with their respective children, five in total, all under six years of age. According to her mother, on 27 August Chloe was given a bottle at about 3.00am, and some time around 9.30am the mother left to go shopping, leaving the prisoner and five children in the house. Chloe was in her cot in the main bedroom and the prisoner was in bed in that room. 9 The prisoner told a psychologist, whose report was tendered on his behalf, that he had consumed a bottle of Black Sambuca on the night before and was hung over, but not badly so. He told her also that on that morning he used about a half a gram of amphetamine and was in a fairly good mood. When she asked him about his attitude to Chloe's death he said, "I feel terrible" and, "Because of my dumb, ridiculous, stupid act she is dead". 10 Excepting insofar as may be inferred from what I have said, little else is known of how Chloe's death occurred. There is no evidence of any admissions by the prisoner other than a letter he wrote to Chloe's mother in January of this year and in which he said he was playing with Chloe while she was in the cot and she fell, hitting the metal on the base of the cot. According to the letter, Chloe commenced to cry. When she would not be consoled, the prisoner left her and when he returned he found her making strange noises and, "you know the rest". 11 For completeness I should mention that in Court and in the presence of the prisoner I raised with counsel appearing for him the inconsistency between parts of this account of the prisoner's belief and further suggestions in the letter to the effect that the prisoner felt obliged to plead guilty and had been promised that he would have to serve no more than two years. I also said that a number of authorities indicated a higher level of punishment. Counsel's responses satisfied me that proceeding on the basis of the guilty plea would not work an injustice. 12 Chloe's mother returned from shopping while the ambulance personnel were present, and after a telephone conversation with the prisoner in which he told her something was wrong. 13 On the topic of the circumstances of the offence there are two other matters that should be mentioned. Firstly, the psychologist to whom I have referred said that the alcohol and amphetamines to which reference has been made were likely to have made an impact on the prisoner's judgment, his level of control and recall. 14 Secondly, there were in evidence statements of a Mrs Lewis. She recounted that on l7 August she had observed a male and a female alight from a motor vehicle. A description of the persons and the car in which they were indicated that the male was the prisoner. Both appeared to be angry. The male then opened a rear door and took a baby out. The statement continues: "The male did not get this baby out with any care. He was rough and forceful with the baby and when he stood upright he shook the baby about twenty times… All the time when this was happening the baby was screaming hysterically. He was still yelling at the female out on the road. The baby was being tossed around like a rag doll." 15 There was no evidence of any other such incidents, and statements of Chloe's mother would tend to indicate there was none. 16 In light of this evidence, on what basis should the prisoner be sentenced? Let me acknowledge that before I can use any fact adverse to the prisoner I must be satisfied of it beyond reasonable doubt. It is sufficient that I be satisfied of matters of mitigation on the balance of probabilities. 17 During the course of his address the Crown Prosecutor said that there was no suggestion that there was any premeditation involved. Certainly the evidence does not suggest any. 18 The evidence of Dr Vimpani and Professor Lyons is compelling. There is no suggestion of any object which could have been used as a weapon and in these circumstances I am compelled to the conclusion that the prisoner must have pushed or thrown Chloe so that she came forcefully against a hard object such as a wall or metal part of her cot. 19 If, as I conclude, there was no premeditation, and if one puts aside accident as inconsistent with the prisoner's plea, then the prisoner's actions must have resulted from a sense or fit of frustration, anger or temper, or a combination of all three. It is easy to see at least frustration arising if Chloe was crying unceasingly and the prisoner was hung over and trying to watch television. 20 An inference of frustration, anger or temper, or a combination of them, becomes stronger if one has regard to the evidence of the psychologist and Mrs Lewis, and my conclusion is that this is the explanation for the prisoner's action. It happens also to be an explanation which, consistent with his plea, is that most favourable to the prisoner. 21 I should record also that the incident reported by Mrs Lewis indicates that the prisoner must have had some foreknowledge or warning of a tendency towards, if not violence, at least inappropriate temper and roughness to a helpless child. It is unnecessary for me to decide whether this tendency was due to his addiction to amphetamines or to having partaken of that drug on the morning of Chloe's injury, although I suspect it was. 22 I turn to the prisoner's subjective circumstances. He was born on 29 October 1965 to an Aboriginal father and white mother. His father died when the prisoner was about four. His mother married again to a non-Aboriginal and had three children in that relationship, and the prisoner felt acutely aware that he was different. His stepfather left when the prisoner was eleven. The prisoner described his upbringing to the psychologist as "not unhappy" but unsettled. 23 The prisoner ran away from home at fifteen and after a period gravitated to Kings Cross. A girlfriend became pregnant but died in childbirth. The prisoner became addicted to heroin until he was arrested for a number of armed robberies and sentenced to imprisonment in a juvenile detention centre for some two years. According to his antecedents that period concluded in September 1985. 24 His only other criminal convictions are in respect of an offence committed in about December 1996 of assault occasioning actual bodily harm, for which he was placed on a twelve months s 556A recognizance. No other information concerning that offence is before me. 25 In September 2000 on two occasions he committed a number of traffic offences, including two charges of each of driving an unregistered vehicle, driving an uninsured vehicle and driving whilst his licence was suspended. In December 2000 and May 2001 he was convicted of driving whilst disqualified and stating a false name and address, and sentenced to imprisonment for one month. 26 It would seem that at about age twenty-one he attended TAFE as a full time student for about two years. Included in a number of certificates tendered on his behalf was a Certificate in General Education dated December 1992 which showed three A grade passes in English, Australian History and Australian Geography, and two B grade and six C grade passes in other subjects. 27 His only full time paid employment seems to have been between 1987 and 1991 when he achieved the position of senior supervisor for a bakery, but he has found occupation at other times with Land Councils or other Aboriginal organisations. There has been other casual work from time to time. 28 For a period in 1999 the prisoner relapsed heavily into heroin use. The psychologist reports, "He reports ridding himself of heroin use only by diverting to amphetamines." This use of amphetamines apparently continued until his arrest on the charge with which I am dealing. 29 The psychologist administered intelligence and personality tests. She reported that the results of the former placed him in the sound to average range. She said that the latter showed "significant and wide ranging psychopathology to a degree where he would be likely diagnosed as suffering a personality disorder." Major substance dependence problems were also indicated where he would satisfy criteria as substance dependent. 30 She recorded also that his pattern of scores appeared to reflect an intense conflict between his desire to withdraw from personal relationships, his fear of independence and a growing sense of unworthiness and despondency. He has a poor sense of self-worth, mistrusts others and may be subject to erratic mood swings. The prisoner reported to her spending six months in the crisis units within the Department of Corrective Services following attempts at self harm. He is currently on antidepressant medication. 31 In addition to those to which I have referred, a number of certificates of attainment were tendered. a number in 1996 and 1997 relate to training for employment. Two dated 18 April 2002 show the completion of a course in anger management. 32 For present purposes, this history sends mixed signals. On the one hand his re-addiction to heroin and his continued addition to amphetamines and the series of traffic offences indicate a degree or irresponsibility. On the other, from such a poor start prior to 1985 he has done remarkably well. Overcoming his first addiction, the continuation of his education and the interest, evidenced by the certificates attained, in acquiring skills are matters of which he can be proud. I agree also with the submission advanced by Mr Toner of Senior Counsel on the prisoner's behalf that the prisoner has shown himself to have a potential in excess of his achievements. 33 As commonly occurs in the case of those who cause injury to children, his time in prison has been spent in strict protection. Despite this, I was informed without dissent from the bar table, that he has had boiling water thrown over him on two occasions. 34 It was submitted on the prisoner's behalf that the prisoner should be given a discount for his plea which was towards the top of the range indicated in Regina v Thompson and Houlton (2000) 49NSWLR383, a decision which, in light of Regina v Sharma (2002) NSWCCA 142, I regard as still authoritative despite the decision of the High Court in Regina v Cameron (2002) HCA 6. 35 However, in this respect the facts are against the submission. I do not regard the prisoner's plea as having been made at an early stage. Virtually from the moment he was charged he could have indicated he was willing to plead guilty to manslaughter. Instead, right up to March of this year he maintained that he had nothing to do with Chloe's death and, until yesterday, or very recently, that any actions of his which did contribute would amount to criminal negligence. Indeed, he has not yet, as far as I am aware, given to any person, except possibly his own legal advisers, any account of Chloe's death which honestly detailed his own actions. 36 That is not to say that his plea and his acceptance, albeit late, of the Crown contention on the basis of manslaughter have not had utilitarian value. They have, and the sentence I intend to impose will reflect a discount of the order of 10 per cent for that. 37 Although it is no doubt reflected in a number of matters I have mentioned, I do not see otherwise than that the prisoner's Aboriginality calls for particular mitigation of sentence. 38 I should however acknowledge that, despite the prisoner's reluctance to plead guilty or publicly acknowledge his involvement in Chloe's death, I am satisfied that he is remorseful for his actions. Despite the denials therein, not only the terms but the pathos evident in the very articulate letter the prisoner wrote in January of this year to Chloe's mother attests to that fact. So do the prisoner's remarks to the psychologist which I have quoted. So also do some of the matters referred to by the psychologist and adverted to in the paragraph above commencing, "She recorded". 39 In light of a number of the matters I have mentioned, I am satisfied the prisoner's prospects of rehabilitation are above average and that it is appropriate to make a finding of special circumstances. 40 But, whatever is said in mitigation about the prisoner, his upbringing or his past, the fact remains that his offence was extremely serious. Because it was the result of frustration, anger or temper, and not premeditated, it falls well short of being categorised as "a worst case", meriting the maximum penalty of imprisonment for twenty-five years. Nevertheless, however unintentional, his frustration anger or temper, of which, as I have said, he had warning, has resulted in the taking away of the life of a helpless child. 41 In the course of preparing these remarks and in deciding what sentence is appropriate for the prisoner's offending, I have had regard to a number of previous decisions of the Courts. In the final version of these reasons I shall include as an appendix a list of them. I do not regard it as necessary here to attempt to summarise any of those decisions or to repeat various of the sentencing principles to which I must have regard. 42 Daryl Raymond Webb, for the offence of manslaughter to which you have pleaded guilty I sentence you to a term of imprisonment for a period of seven and a half years. I fix a non-parole period of four and a half years. Both periods shall date from 30 November 2000. You will be eligible for parole on 29 April 2005.