REGINA v MARSHALL [2003] NSWSC 448

New South Wales Supreme Court

CITATION : REGINA v MARSHALL [2003] NSWSC 448 HEARING DATE(S) : 12/5/03, 13/5/03 14/5/03, 15/5/03, 16/5/03, 19/5/03, 20/5/03, 23/5/03 JUDGMENT DATE : 23 May 2003 JURISDICTION: Common Law JUDGMENT OF : Adams J at 1 DECISION : Sentenced to a term of six years' imprisonment commencing on 4 January 2002 and expiring on 3 January 2008. Non-parole period of three years and six months. Eligible to be released on parole on 3 July 2005.

CATCHWORDS : Manslaughter - momentary act of violence - baby shaking - plea of guilty - sentenced to 6 years imprisonment - non parole period 3 and a half years LEGISLATION CITED : s44 Crimes (Sentencing Procedure) Act 1999 Nguyen, unreported NSWCCA 14 April 1994 R v Hearne [1999] NSWSC 605 R v Howard [2001] NSWCCA 309 CASES CITED : R v Previtera (1997) A Crim R 76 Thomson & Houlten (2000) 49 NSWLR 383 Tran, unreported [1999] NSWCCA 109 Veen v The Queen (No 2) (1988) 164 CLR 465 Regina

PARTIES : v

Aaron Charles Marshall FILE NUMBER(S) : SC 70076/02 COUNSEL : Mr D Arnott (Crown) Mr A Heasler (Offender) SOLICITORS : S E O'Connor (Crown) Mr Michael Bartlett (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

FRIDAY 23 MAY 2003

70076/02

REGINA v AARON CHARLES MARSHALL

JUDGMENT ON SENTENCE 1 HIS HONOUR: On 19 May 2003 Aaron Charles Marshall was acquitted by a jury of the murder of Jordan Cummings and convicted instead of his manslaughter. Jordan died in Canberra Hospital at 10.18 pm on 30 December 2001 from respiratory failure resulting from severe injury to his brain stem caused when he was violently shaken earlier that day. It is possible that a contributing factor was an impact to Jordan's head sufficient to cause an occipital hairline fracture and separation of the occipital and parietal suture. This injury must have been suffered within six hours or so of Jordan's death and thus within a few hours of the shaking injury but whether it was a contributing factor in Jordan's death is uncertain. I will need to return to this matter in due course. There was never at any time any doubt that Marshall caused Jordan's death. The crucial question in the trial was whether, when he did so, he intended to cause grievous bodily harm. The prosecution never suggested, and could not have suggested, that he intended to cause Jordan's death. By its verdict, the jury must be taken to have found that the prosecution had not proved beyond reasonable doubt that Marshall intended to inflict grievous bodily harm, although what he did was both unlawful and dangerous. 2 In light of the evidence in the case, especially the medical evidence, the jury's verdict was, to my mind, inevitable. The circumstances were indeed gravely suspicious but, in the end, the prosecution failed to prove beyond reasonable doubt that Marshall's intention, when he shook Jordan, was to cause him grievous bodily harm. In assessing culpability for the purpose of imposing a sentence, it is incumbent upon the Court to act upon the same basis. In short, the crime for which Marshall must be punished, though serious, is not nearly as grave as the crime of murder. The essential difference between murder and manslaughter is no mere matter of legal definition. It is obvious that where death results from acts that are inflicted with the intention of causing death or with the intention of causing grievous bodily harm, the wickedness (if I may be forgiven for using a somewhat old-fashioned term) that calls for punishment is very great indeed. Where an unintended death results from an unlawful and dangerous act not intended to cause grievous bodily injury, the wickedness involved is significantly less. Of course, this conduct is still very wrong, indeed, criminally wrong and must be punished but the measure of that punishment will be significantly less than if the offender has committed murder. It is also necessary to remember that, in deciding the facts of a case for the purpose of sentence, the law requires that matters which are adverse to the offender, as with deciding whether he or she is guilty or not guilty of the charge in the indictment, must be proved beyond reasonable doubt. 3 What, then, are the facts in this case? Let me first deal with those that are largely uncontroversial. Jordan Cummings was the baby son of Kylie Cummings and was born on 30 March 2001. The relationship between Ms Cummings and the boy's father, Daniel Williams, was an unhappy and violent one and they separated. Ms Cummings said Mr Williams had only seen his son once, about two months after he was born. Jordan lived with his mother in Laidlaw Street, Yass. As it happened, this was next door to where Marshall's sister, Nicole, lived. She was also about twenty-one years of age and had a young daughter of her own. In about October 2001 Ms Cummings commenced a relationship with Aaron Marshall. Marshall lived with his parents in their home in Nash Place, Yass. He stayed overnight with Ms Cummings only on several occasions. Ms Cummings said that Marshall got on well with Jordan and helped with his care by changing his nappies, bathing and feeding him. Shortly after they commenced their relationship, Ms Cummings got a part-time job at a nearby supermarket and left Jordan in Marshall's care while she was at work for her five hour shifts. It seems a fair estimate that Marshall looked after Jordan for extended periods on about twenty occasions before the day of his death. There is no evidence that he acted otherwise than appropriately on these occasions. Indeed, from the fact that Ms Cummings entrusted Jordan to him, I infer that she believed that he was looking after her son well. She also had the opportunity to see how the two of them related on the occasions when they were all together. I am satisfied that there was no reason for Ms Cummings to have suspected that she was exposing Jordan to any danger by leaving him in Marshall's care. Marshall would often take Jordan next door to his sister's house to play and Nicole was available if he needed help or advice. 4 In mid November Jordan had become ill and had to be taken to the hospital twice. He became very lethargic and unresponsive, crying and apparently irritable. In due course asthma and middle ear infections were diagnosed and a course of antibiotics was prescribed. His condition improved and he was well by the end of December. There may have been more to this episode than was then realised and I will return to it in due course. 5 On 30 December Jordan woke up about 6am and was fed a bottle by Ms Cummings. He went back to sleep. He had some breakfast of rice cereal about four hours later and needed a nappy change. He played in the lounge room until about 1.30pm, when he had a sleep. He woke, was given some cordial and went back to sleep in his cot in his bedroom. Jordan was still sleeping when Ms Cummings left for work at about 3.45pm. Whilst he was playing (and his mother was vacuuming) he had climbed up on a small child size lounge apparently trying to climb up onto the bigger lounge, when he fell to the floor. The floor was carpeted on a hard surface, probably concrete slab (from the photographs of the house). The evidence is somewhat unclear as to the height Jordan fell because, although the seat of the small lounge is about 40 centimetres from the ground, photographs taken later show that it had been placed on its back, which was much narrower. However, I am inclined to think that it was in its normal position at the time Jordan fell because the photographs show it to be some distance from the other lounge in a position quite inconsistent with Ms Cummings' description of what happened. Ms Cummings said that she picked Jordan up to comfort him and to make sure that he was all right. He seemed to be unhurt and, as I have mentioned, was later settled in his cot and went to sleep. 6 It is now necessary to pick up the account as Marshall told it to the police in two interviews, the first took place at about 5am on 31 December and the second four days later. In his first interview Marshall gave the police, in substance, the following sequence of events: Jordan woke up about thirty minutes or so after Ms Cummings left for work: he drank a bottle of milk; Marshall then changed his nappy; Jordan then played on the floor with his toys for a while; he started to cry; Marshall gave him some cordial and then tried feeding him some food, which Jordan would not eat; eventually he gave the baby some bread to chew on; Marshall then sat Jordan on the lounge and went to the toilet; whilst in the lavatory he heard Jordan scream, he ran back to the lounge room and found Jordan on the floor choking on something; Jordan was lying on some toy blocks and his head was next to a plastic box of nappy wipes; he was crying; Marshall tried pushing Jordan's stomach to get him to cough it up but this did not work; Marshall then ran over to his sister's house to get help; he attempted CPR and tried clearing Jordan's airway with no effect; Jordan was only breathing with difficulty when the ambulance arrived and took him to hospital. I note that the police found, when they examined the house, pieces of bread in the kitchen tidy and a bowl of prepared food on the kitchen bench. Marshall also told police that his mother had visited briefly during the late afternoon. 7 The second interview commenced with the police telling Marshall that they regarded Jordan's death as suspicious and that what he had said in his first interview did not explain Jordan's injuries. Marshall's initial response was to say that, after he had tried to feed Jordan the prepared meal, he lost his temper and "I can't remember what I've done". This, of course, was a lie. The police then asked him to go through what happened, starting from the time that he first changed Jordan's nappy. Marshall then gave a number of accounts, adding details as he went, in an obvious attempt to avoid telling the police what had happened when he lost his temper. In fairness, I should point out that he did not know the cause of Jordan's death. The police told him no more than that it was suspicious. When one considers Jordan's obvious breathing difficulty and what Marshall did when attempting to resuscitate him, as confirmed by the witnesses, I have no doubt that Marshall believed or wanted to believe that Jordan died from asphyxiation. He knew, of course, that he had shaken the child and that this was dangerous, though I accept that he did not know at the time how dangerous and had not intended to injure the child. He may also have acted with some momentary violence and caused, in some way that cannot now be determined on the evidence, the fracture to which I have referred. However, I am inclined to think – on the whole of the medical evidence – that this injury was more likely to have been caused when Jordan fell off the small lounge whilst his mother was vacuuming. (Regrettably, the police did not ask Marshall specifically about this injury and whether he knew how it may have come about, but this may have been because they were unaware of it as at 4 January 2002.) What Marshall admitted in the second interview were certainly wrong enough for him to want to conceal them but, in all the circumstances, I doubt that Marshall more than suspected that somehow they may have contributed to Jordan's death. In his second interview he added a number of matters to his earlier account. He said that, after he had changed Jordan's nappy for the first time, Jordan continued to cry. He thought that it might have been teething, so he got a frozen carrot and tried to ease him with that, but it did no good. Marshall said that he may have pushed it "a little bit too hard…and I think he might have choked on the carrot". It is possible that this caused the slight injury to the frenulum which was noted on autopsy but there were other likely (and not sinister) causes. Marshall said that he had been in a bad mood and was "really down", mostly, so far as I can see arising from a minor disagreement with Ms Cummings that morning. He said, in effect, that he got frustrated and angry with Jordan. He said that he tried putting up with Jordan's crying for "at least a good hour" but then he "lost it, sort of thing". He said that, when the carrot failed to pacify Jordan, he shook him. He said that he did this for "probably about 30 seconds or something", that Jordan stopped crying and then "started gasping for air". Marshall said that he then ran over to his sister's house. I interpolate here that I do not think that Marshall's estimate of time is reliable at all. Such estimates are notoriously unreliable and, in my view, this would be especially so in the circumstances here. I note, by reference to other more reliable evidence, that a number of other estimates of time made by Marshall in his interview were quite mistaken. I rather think also that the estimates he later gave of 5 to 7 seconds or so are underestimates. Be that as it may, I conclude that he shook Jordan angrily a number of times over a short period but for significantly less than half a minute. It was suggested in the medical evidence that at least 20 shakes (it is not clear whether this meant 20 movements or 20 combined forward and backward movements) were needed to cause the injuries but I am sceptical about this opinion, since it is self-evident that such matters cannot be established by satisfactory testing. Certainly the evidence does not permit a conclusion beyond reasonable doubt adverse to the offender. I do not consider that this evidence should lead me to qualify my view that I do not believe that Marshall intended to cause Jordan any real injury, although he was frustrated and angry and certainly used quite inappropriate force in venting that frustration on the child. The state of his knowledge of the dangers of shaking babies at the time of the incident is vague. Certainly, he had some knowledge that it was dangerous which came from a television programme he had seen some years earlier. I am doubtful, however, that this was present in his mind at the time although it may have been recalled during the shaking or immediately after. Some other details he got after the incident. In the end I am persuaded that he realized that he done something that was wrong, he suspected that it may have caused Jordan's condition though he believed that Jordan was choking on something (the only sensible interpretation of the nature of his panicky attempts to treat Jordan afterwards) and that his concealment of the fact in his first interview with police was a combination of this hope, his guilty feelings and his inability to confess to serious wrongdoing. I am satisfied that, in the end, the account given by Marshall to the police on 4 January is substantially true. 8 I do not intend to refer to the injuries that were discovered on autopsy. In the end, the evidence does not permit the conclusion that Marshall inflicted any more violence than the shaking. Moreover, aside from the fracture to which I have referred, the other injuries ranged from the minor to the trivial and a number may have been caused by the attempts to treat Jordan, firstly by Marshall and later by the medical personnel. I have mentioned Jordan's lethargy and unwellness about three to four weeks before his death. On autopsy the signs of a nearly healed closed head injury that had caused subdural bleeding were seen. It was thought to be perhaps four weeks old or so. Such an injury may well give rise to the symptoms that Jordan demonstrated that that time. Dr Moran thought that such head injuries are frequently undiagnosed. There is no evidence that Marshall or, for that matter, any other person was responsible for this injury. 9 In order to constitute the crime of manslaughter, it is not necessary for the prosecution to establish, once the unlawfulness and dangerousness of the act causing death is proved, that the offender knew that what he or she did was dangerous or, to use the legal formula, that there was an appreciable risk of serious injury. It is sufficient to establish that a reasonable person in the position of the offender would have had that knowledge. It is, however, relevant to the assessment of Marshall's culpability for the purpose of sentencing him, to consider the state of his knowledge and understanding at the time. I have concluded that he was aware that shaking Jordan was dangerous, potentially very dangerous, though I do not think that he was aware that it might be lethal. On the other hand, when he shook Jordan, I consider that he did so without thinking about the potential seriousness of what he was doing. It was an act of unthinking momentary angry violence as quickly regretted as done. But he was aware at the time that such violence should never be inflicted on a child and that it might injure him. His frustration and his anger are understandable, indeed, in a sense, excusable, but it was very wrong, and he was aware at the time that it was very wrong, to take out that anger and frustration on the child who had been entrusted to his care. Jordan died as a direct result of Marshall's intentional, though unpremeditated, violence. It is important to record that Jordan was not an abused child and that Marshall, before the incident which brings him here, had apparently taken good care of him. Ms Cummings had no reason to suspect that Marshall could be violent towards Jordan in any way, let alone that he might seriously hurt him. 10 Tendered on Marshall's behalf without objection are the reports of Dr Lucas, a consultant forensic psychiatrist and Ms Ursula Johns, a neuropsychologist. What follows is a summary of the information disclosed in both reports. Marshall was 22 years of age at the date of the crime. Although his parents separated when he was just over eight years old, he has a good relationship with both of them. (I note that his father has been present throughout these proceedings.) He has had long-standing difficulties with reading and spelling and is functionally illiterate. His capacities in this regard and for mathematical reasoning are substantially below normal although he functioned at average level on tests of non-verbal ability. Marshall, whose childhood was an unhappy one, has a long history of behavioural problems including impulsivity and outbursts of anger and occasional violence. He had problems at school, aggravated by learning difficulties, and left partway through year nine at the age of fifteen. Marshall has had several spells of employment but a back injury whilst working for Yass Shire Council has prevented his return to labouring work. He is, essentially, unskilled. There is no evidence suggesting a major psychiatric or neurological disorder, though since his incarceration on remand he has suffered from depression and has required antidepressant medication. It is obvious that his behavioural problems and impulsivity contributed to his commission of this offence. I gather from Ms Johns' report (with which Dr Lucas does not dissent) that there is no psychological impediment to learning anger management and he also may well be able to improve his literacy skills. He appears motivated to do so and this gives hope for his rehabilitation. Marshall has been in prison since the date of his arrest on 4 January 2002. The prison regime applying to prisoners on remand is more severe than that which applies in most cases following sentence and classification. An allowance for this consideration must be made. 11 Victim Impact Statements made by Jordan's father and grandmother have been tendered by the prosecution. They speak of their sense of loss, of grief and of anger. What is done in this courtroom does not and cannot in any way be compensation for these feelings. The death of a child, especially in these circumstances, is indeed tragic. 12 As I have said in other cases, however, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the then Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. It would be wrong to take one day from an otherwise appropriate sentence for murder because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous, brave, loved and surrounded by friends and family. If this were not so, counsel for the killer might rationally submit that, as the victim was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit to the contrary. The virtues or vices of the victim, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. The same considerations must apply where the victim is a child. More difficult, perhaps, to accept but also important is the notion that the worth that the law ascribes to the life which has been lost is a reflection of that same sense of reason and humanity which requires value also to be ascribed to the lives of the persons who come to be sentenced. 13 In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, Mason CJ, Brennan, Dawson and Toohey JJ said – "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..." 14 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrator, his or her personal characteristics and attributes and the various explanations for their criminal behaviour. The public interest as well as the personal interests of the victims must be reflected in the outcome. As is obvious, these considerations will be in tension, if not in conflict. 15 The courts have long held, and it is the law, that prospects of rehabilitation and reform are especially important in respect of young offenders, not only for their own sake but also in the public interest. For this reason, the sentence should "[preserve] a proper opportunity and encouragement for rehabilitation": Wood CJ at CL, R v Hearne [1999] NSWSC 605 at 77. Although the significance of this factor diminishes as the offender approaches maturity (Nguyen, unreported NSWCCA 14 April 1994) and when the offender conducts himself like an adult and commits a particularly serious crime (Tran, unreported [1999] NSWCCA 109), I consider it to be an important element in this case. 16 It seems very likely that Marshall will serve most, if not all, of his time in gaol in protective custody, which is significantly harsher than normal imprisonment. This is necessary because of the real risk of reprisal against him in the gaol environment arising from the nature of his offence. The sentence that I pass must be adjusted to take this into account. It is also necessary to reduce the sentence that would otherwise have been necessary by virtue of the utilitarian value of his plea of guilty to the crime of manslaughter which was offered, as I have mentioned, at the first practicable opportunity: Thomson & Houlten (2000) 49 NSWLR 383. Although the evidence on this charge was overwhelming, much of the case came from his ultimately candid admissions to the police. If the prosecution had accepted Marshall's plea, Ms Cummings and other members of Jordan's family would have been spared the distress that I have no doubt was occasioned by the trial. (I do not by this mean to imply any criticism of the Director of Public Prosecutions.) The offender did not give evidence on the plea. In most cases this will not qualify its utilitarian value. However, as I have mentioned, the cause of the fracture suffered by Jordan remains in doubt. As is my duty, I have given Marshall the benefit of the doubt in respect of this matter. But his failure to give evidence bespeaks less than the complete cooperation about the circumstances of the offence to which the suggested maximum discount of 25% will in most cases apply. In addition, I emphasise the point clearly made in the judgment of the Court of Criminal Appeal that, at all events, the proposed range of discount is a guideline only. 17 I have no doubt that Marshall's expressions of remorse and contrition for what he has done are genuine and it is both necessary and right that his sentence should take this into account. However, Marshall's loss of self-control resulted in his committing what he was aware at the time was inexcusable and potentially dangerous violence, with tragic consequences. I do not think that personal deterrence is necessary here: I am confident that Marshall will never do anything like this to a child again. However, other adults liable to commit such acts, who are liable to indulge their irresponsibility and lack of self-control must be deterred, if possible, by the message that an appropriate sentence will be inflicted on them if they hurt children and that the excuse that they did not know how serious the consequences of their violence might be will not suffice to keep them out of serving a substantial term of imprisonment. 18 A number of decisions where offenders have been sentenced for the manslaughter of children were usefully collected in the judgment of Wood CJ at CL (with whom the other members of the Court agreed), the in R v Howard [2001] NSWCCA 309. As his Honour rightly observed (ibid at [20]), "consistently heavy sentences" have been imposed in these cases. This reflects both the concern of the community to protect children from violence – which all too frequently goes undetected – and the particular gravity of criminal acts that result in their injury and death. 19 After taking all these considerations into account, and applying a utilitarian discount in the order of 20%, the offender is sentenced to a term of six years' imprisonment to date commencing on 4 January 2002 and expiring on 3 January 2008. I consider that special reasons exist, comprising principally his psychological impairment and nature of imprisonment, justifying a departure from the statutory formula specified in s44 of the Crimes (Sentencing Procedure) Act 1999. Accordingly, I impose a non-parole period of three years and six months. The earliest date upon which he will be eligible to be released on parole is 3 July 2005. **********