New South Wales Supreme Court CITATION : REGINA v DALTON [2004] NSWSC 446 revised - 26/05/2004 HEARING DATE(S) : 5/4/04-8/4/04, 13/4/04, 15/4/04, 19/4/04 JUDGMENT DATE : 19 April 2004 JURISDICTION: Common Law JUDGMENT OF : Adams J at 1 DECISION : Sentenced to serve a minimum term of imprisonment of three years and three months from 10 September 2002. Eligible to be released on parole on 9 December 2005. The balance of the term of seven years' imprisonment will expire on 9 September 2009. To be placed under the supervision and control of the Adult Probation Service for the period of parole or such earlier time as that service considers desirable. CATCHWORDS : CRIMINAL LAW - manslaughter - sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s44 CASES CITED : R v Fernando (1992) 76 A Crim R 58 Regina PARTIES : v Dennis James Dalton (Offender) FILE NUMBER(S) : SC 70019/03 COUNSEL : Mr N A P Harrison (Crown) Mr A W Barber (Offender) SOLICITORS : Mr A Horowitz (Crown) Ross Hill & Associates (Offender) Ex tempore - revised THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION ADAMS J LISMORE: MONDAY 19 APRIL 2004 70019/03 - REGINA v DENNIS JAMES DALTON NON PUBLICATION ORDER AS TO NAMES OF VICTIM AND VICTIM'S MOTHER SENTENCE 1 HIS HONOUR: The offender pleaded guilty before me on 8 April 2004 to the offence of manslaughter arising out of the death of a young child on 18 January 2002. It is agreed that the basis of that plea is that the offender caused the child's death by an unlawful and dangerous act. This plea comes on the verge of the commencement of the offender's trial. Although it has some utilitarian value, this is not great. Aside from avoiding the expense and inconvenience of a trial, its main virtue is that it avoids the necessity of the child's mother giving evidence, which must have been very distressing for her. In accordance with the law as laid down by the Court of Criminal Appeal it seems to me that an appropriate discount from the sentence I would otherwise have imposed is of the order of ten percent. 2 The facts have been agreed and may be briefly stated. The offender was born on 2 December 1983 and was accordingly just over eighteen years of age at the time of the offence. He is now something over twenty years old. In January 2002, the offender and the child's mother, were living together in a de facto relationship in Casino with the mother's two children, a baby, born 26 November 2001 and the child born 23 January 2000. The mother was about a year younger than the offender. The child's natural father, was then serving a prison sentence in Queensland. The offender and the mother had known each other prior to this, when the mother was living with the child and his natural father in Bundaberg. Shortly after the natural father's incarceration, the offender, the mother and the child moved to Casino. It was mid year and the mother was then three months pregnant with the second child. At first they lived with some of the offender's relations, and about two months later moved into a flat of their own. 3 The mother said that she had noticed that the offender smacked the child's legs for no reason when they were living with his cousin. As is obvious, he was then seventeen years of age. When the offender was told not to do it, even by his mother or sisters, he threatened to assault them. However, on one occasion when he and the mother argued about his treatment of the child, he said he was sorry and would not do it again. Unfortunately, after they moved into their own flat, the offender became more violent towards the child and the mother saw him backhand the child to the side of his face within a few days of their moving. She said that, one way or another, the offender was violent towards the child every day. He threatened that if she told DOCS about what was happening, they would take the child away from her and she was scared that this might happen. They would often argue. The situation became worse and despite her pregnant condition, the offender started to push the mother when she went to pick the child up, though mainly he just threatened her. 4 The offender's violence towards the child in the end resulted in the child's admission to Casino Hospital at just after 3.30pm on 17 January 2002. He was unconscious. The offender and the mother had first told medical staff that the child had fallen off a couch and hit his head, however, the admitting doctor concluded that the child had been "violently assaulted and was probably going to die from his brain stem injury". The child was transferred to Lismore Base Hospital where he was assessed by Doctor Chris Gavaghan, the Director of Accident and Emergency. Dr Gavaghan noted bruising on the right side of the child's face in the form of three circular bruises in a row between the right eye and the mouth, which were black in colour and measured under two centimetres each. There was evidence of retinal haemorrhages in both eyes and haemorrhages behind the left and right tympanic membranes of the ears, symptomatic of accelerative brain injury. Dr Gavaghan also noted a number of other small older bruises over the chest wall. An urgent brain scan showed that the child had significant bleeding in his brain. A skeletal survey revealed multiple arm fractures of different ages in the left arm and an old healed fracture in the right arm. One of the fractures in the left arm was a clearly visible fracture of the left wrist. Dr Gavaghan was of the opinion that "the child was most likely subjected to continuous abuse over a prolonged period of time and this is evidenced in his skeletal survey and his general nutritional state". This last observation rather demonstrates the couple's inadequate parenting skills, rather than any deliberate abuse. 5 The child was placed on life support in the Intensive Care Unit. About 10.50am on Friday 18 January 2002, the child was examined by two Intensive Care specialists and life was pronounced extinct. He was just five days short of his second birthday when he died. 6 A post mortem examination conducted by Dr Peter Bradhurst at the Institute of Forensic Medicine in Glebe, disclosed multiple bruises over the child's body, especially the face, chest, right forearm and right thigh. Dr Bradhurst also found head injuries, spinal injuries and fractures of different ages. He concluded that the injuries were indicative of non-accidental injury and stated that the cause of death was head and possibly spinal injuries. 7 The offender and the mother were both interviewed by police on 17 January 2002 but lied about what had happened to the child. About three weeks later, the mother was again interviewed by police. On this occasion she informed them that the offender had been in the room with the child and that she had heard the child crying. She said that she went into the room and told the offender to leave the child alone. The accused pushed her out of the way and pushed the child's head against the window, and said, "Shut up, [child's name]." 8 On 1 March 2002, the offender was further interviewed by police. He agreed that he had placed the child on the window sill but denied pushing his head against the window. However, he admitted that he had been present when the child lost consciousness. During this interview, the offender also admitted tying up the child and making him stand in the corner. 9 Dr Kieran Moran, the Director of the Child Protection Unit, Sydney Children's Hospital, was consulted by police and reported – "The child died as a result of abusive head trauma and that he had been severely abused prior to the fatal incident. It is likely that he suffered a variety of severe impacts to the head during the fatal assault." Dr Moran considered that the child would have lost consciousness as soon as the primary diffuse brain injury occurred. He also thought that none of the initial versions supplied by the offender explained the severity of the primary brain injury. In his evidence in the committal proceedings on 14 February 2003, Dr Moran testified that the fatal injury could have occurred as a result of an extremely severe acceleration against a soft surface such as a mattress, which included a whip-lashing movement to the head. He agreed that a male taking hold of a child and throwing it with great force and power onto a mattress on the floor could have caused the fatal injury. 10 Eventually, on 22 July 2003, the mother told police in detail of the events immediately leading up to the ultimately fatal injury to the child. The mother stated that she was in the laundry and heard the child screaming so she ran into his bedroom – "I ran in there and saw DJ [the offender] had him up on the window sill holding him by the shoulders. DJ wanted him to jump and he would let go of him. DJ said, 'I want him to jump.' I said, 'Can't you see he's scared, he's shaking.' [The child] started screaming louder and DJ grabbed his head and just pushed it into the window, just the once, he pushed him backwards into the window. I went over to grab [the child] but DJ pushed me away. When he pushed [the child's] head into the window he used two hands, he grabbed him over the ears and just thrust his head back against the window, it was just too quick. It was loud but the window didn't smash or crack. He then took him off and chucked him on the mattress. It was a forceful chuck. He chucked him on his back and his head was on the edge." The child lost consciousness immediately after that. 11 On 10 September 2002, the offender was arrested and charged with the child's death. He has been in custody since that date. 12 During the investigation a number of persons were interviewed and supplied statements to police. Many of these persons witnessed the offender abusing the child on a number of occasions during the previous six months, making the child stand in a corner for lengthy periods of time, smacking him excessively, dragging the child by the arm, lifting him by one arm and smacking him, hitting him on the head with an open hand, on some occasions causing him to fall heavily on the ground and force feeding the child by taking hold of his mouth and forcing him to chew. 13 It is important to appreciate that the offender is not charged with any of these acts. The sentence that I impose today is for the crime of manslaughter arising from the assaults that caused the head injuries from which the child died on 18 January 2003. The relevance of these other facts is that they demonstrate that the violence of the day in question was not isolated, it was not accidental and it was not momentary. It was the culmination, as it happened, of continual physical abuse. 14 The offender himself has not given an account of what happened but it is clear that he does not dispute that the mother has told the truth. In evidence before me, he has expressed his sorrow for what happened but I very much doubt that this is deeply felt. However, my impression may simply reflect the offender's difficulty with expressing emotion, other than anger. He described himself to Dr Lloyd, a psychologist whose report has been tendered on his behalf in these proceedings, as having "a short fuse". He is easily aroused to anger and has constant feelings of emotional devastation, resulting largely from an upbringing marked in early life by extreme physical and emotional abuse. Of course, he is not responsible for these feelings, but – for all his undoubted immaturity – he is responsible for the acts which result from them. He began to use marijuana and alcohol in his early teens but became involved in playing with the Casino RSL Rugby Club, took up BMX bike riding and stunt riding. In his mid teens, his life became increasingly dominated by marijuana and alcohol. It is clear from the relationship with the mother and the child that the cycle of violence and abuse that typified the offender's early childhood has returned with the roles reversed. As so often happens, the victim becomes the perpetrator in a repeated cycle of violence. 15 It is important in the context of this case to give weight to the fact that the offender is Aboriginal and hence part of a marginalised community which, in his case, I think has contributed significantly to his own feelings of inadequacy and self hatred, to which Dr Lloyd has referred: see R v Fernando (1992) 76 A Crim R 58. 16 Dr Lloyd has diagnosed the presence of Borderline Personality Disorder, which is regrettably likely to be exacerbated in prison. The offender has been self-harming – in part, I think due to feelings of guilt which he has, until now attempted to deny – and needs supervision. Without lengthy and intense treatment for some years, the offender is unlikely to improve, even outside the prison context. Moreover, the prospects of success even with such treatment are doubtful. 17 The relative youth of the offender is a most significant factor in the assessment of an appropriate sentence, and points to the great importance of rehabilitation in this particular case: though not a child at the time of the offence, he was very far from a mature adult. Objectively, the offence was a very serious one, but I am quite satisfied that the offender did not realise the serious potential for grave injury that his actions caused, though he was well aware that his actions were criminal assaults, quite capable of causing painful injuries, to which he was apparently angrily indifferent. I think that he still feels that the child's death at his hands was accidental; this might merely be a mark of the offender's relative immaturity. 18 I have reluctantly concluded that the circumstances of the offender's crime are so serious that I am bound to impose a term of imprisonment which will result in the offender serving some more time in prison. Though unexpected, a small child was killed by the offender's act of deliberate cruelty, an act which he knew to be wrong and of a kind which he had been told on many occasions he should not commit. 19 The criminal law has only crude tools at its command, but its fundamental role is to protect society from violence, especially potentially lethal violence. This requires weight to be given both to the personal deterrence of the offender, which is of particular relevance in this case having regard to the psychological report, and to general deterrence of those who think that violence to children will not be treated seriously. At the same time, the relative youth of the offender requires, and his psychological dysfunction must qualify, the application of the element of general deterrence and requires some amelioration of the sentence that would otherwise have been appropriate for a mature adult and a structure that will encourage rehabilitation. 20 As I have already mentioned, the offender has been in custody since 10 September 2002. He has spent most of that time in special protection and will continue to do so. Moreover, the conditions of imprisonment whilst on remand are significantly more harsh than ordinary imprisonment, so that merely to backdate the sentence is an inadequate adjustment. This is an important factor which requires an allowance to be made in the term still to be served. There are, as is obvious, special circumstances that justify a departure from the statutory calculus in s44 of the Crimes (Sentencing Procedure) Act 1999, primarily to enable a lengthy period of supervision and support after the offender's release. I have taken into account the offender's expression of contrition in addition to the utilitarian discount. 21 Dennis Dalton, you are sentenced to serve a minimum term of imprisonment of three years and three months from 10 September 2002, so that you will be eligible to be released on parole on 9 December 2005. The balance of the term of seven years' imprisonment will expire on 9 September 2009. I direct that on your release to parole you shall place yourself under the supervision and control of the Adult Probation Service for the period of parole, or such earlier time as that Service considers desirable. ********** Last Modified: 05/28/2004 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.