R v Mundene [2007] NSWSC 355

New South Wales Supreme Court

CITATION : R v Mundene [2007] NSWSC 355 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 02/03/2007, 05/04/2007

JUDGMENT DATE : 19 April 2007

JUDGMENT OF : Howie J at 1

DECISION : The offender is convicted and sentenced to a term of imprisonment with a non-parole period of 3 years 9 months and a balance of term of 3 years. The non-parole period is to date from 15 October 2006 and expire on 14 July 2010 the date upon which the offender is eligible to be released to parole. The balance of term commences on 15 July 2010 and expires on 14 July 2013.

CATCHWORDS : Criminal Law - Sentence - manslaughter - death of baby by shaking.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s21A(3)(j)

R v Callaghan v R [2006] 160 A Crim R 145 CASES CITED : R v Monroe [2003] 148 A Crim R 478 R v Hoerler [2004] NSWCCA 184

PARTIES : Regina v Keith Herbert Mundene

FILE NUMBER(S) : SC 2006/1713

COUNSEL : P. Barnett - Crown P. Winch - Offender

SOLICITORS : S. Kavanagh - Crown S. O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

THURSDAY 19 APRIL 2007

2006/1713 REGINA v KEITH HERBERT MUNDENE

REMARKS ON SENTENCE 1 HIS HONOUR: On 2 March 2007 the offender was arraigned before me on an indictment alleging that he murdered a child aged seven months. He pleaded not guilty to murder but guilty to manslaughter and the Crown accepted this plea in full satisfaction of the indictment. It was accepted by the parties that the basis of the manslaughter was an unlawful and dangerous act committed by the offender when he shook the child causing fatal injuries. The injuries were inflicted on 5 July 2005 and the child died the next day in hospital. The offender is now to be sentenced for that offence which carries a maximum penalty of imprisonment for 25 years. 2 A statement of facts was tendered as the basis upon which I am to sentence the offender. I was not given any other statements or material from the Crown brief. The facts can be summarised as follows. In October 2004 the offender became involved in a relationship with Ms Simon, the child's mother, who at that time was pregnant to another man. On 17 November 2004 Ms Simon gave birth to the child, the victim in this matter. 3 On 14 November 2004 the offender was taken into custody for an offence of dishonesty. He remained in custody serving a sentence until 13 June 2005. During his period of incarceration the relationship with Ms Simon continued by letters, telephone calls and occasional visits by her to the gaol. Throughout these communications the offender referred to the child as his son and made enquiries about his health and welfare. 4 Shortly before the offender's release, Ms Simon went to live at Taree with the child. On his release the offender joined them. The couple slept with the child on a mattress on the floor in the lounge room of the premises. At the time the offender was smoking cannabis and recommenced using heroin despite telling Ms Simon that he would not do so. 5 A week before the child's death the offender was playing with him in a rough fashion. Ms Simon remonstrated with him warning against shaking the child or roughly handling him as it could cause brain damage or death. The couple argued about the offender's handling of the child. 6 On 4 July 2005 Ms Simon left the child in the care of the offender at the home of the offender's uncle while she went to do some shopping. When she returned the child was asleep but Ms Simon disturbed him and he woke and began crying. Ms Simon and the offender argued, the offender blaming her for disturbing the child. They then returned to where they were staying. There the offender smoked cannabis and Ms Simon fed the child. Eventually the offender, Ms Simon, and the child fell asleep on a mattress on the lounge room floor. During the night the child stirred several times, crying on each occasion. Each time Ms Simon got up and comforted the child back to sleep. 7 At about 4:30 a.m. the child began to cry, waking both Ms Simon and the offender. Ms Simon tried unsuccessfully to settle the child. The offender became irritated and told Ms Simon that he was tired and she should stop the baby crying. The offender went to the bathroom. When he returned, the child was still crying and the offender began to argue with Ms Simon. She prepared a bottle of baby formula and fed the child. She then lay with him on the lounge holding him to her chest in an attempt to settle him but without success. The offender became more agitated repeatedly telling Ms Simon that she should quieten the baby. Eventually he offered to get the baby to sleep and lay down with him on the mattress on the floor. 8 Ms Simon fell asleep. However something caused her to wake and she saw the offender shaking the child. He was kneeling on the floor and holding him under the armpits with the child's back toward him. Ms Simon saw the child's head was moving rapidly back and forth. She called out to the offender to stop, saying that he was going to kill the child. The offender said that he knew what he was doing and continued to shake the child for about thirty seconds. He then dropped him onto the mattress. 9 The child was lying on his right side and Ms Simon thought that he would not be able to breathe. She asked the offender to blow into his mouth. He told her to go across the road to a neighbour's house and call an ambulance. This she did and when she returned the offender was giving the child mouth-to-mouth. The neighbour came with Ms Simon and contacted Triple 0. She relayed questions from the operator to the offender asking what had happened before the baby stopped breathing. The offender said, "I'd been playing with the baby. I put him down on the mattress and all of a sudden he stopped breathing". The offender made a similar statement to an ambulance officer who arrived at the home a short time later. 10 Despite efforts to resuscitate the child, he died the next day. Post mortem examination of the child showed that he had suffered massive brain swelling consistent with what is commonly referred to as a shake/impact injury. The child suffered fractures to a number of ribs and a fracture of the distal left femur. All of the injuries suffered by the child were consistent with the offender's conduct as described by Ms Simon. There is no suggestion that the child had injuries from any other assault upon him. The child had generally been in good health and it is possible that he was teething at the time causing him to be unsettled and crying. 11 The offender was arrested on 5 July 2005 and charged with assault. Following the death of the child he was charged with murder on 18 July 2005. He has been in custody since his arrest. 12 The statement of facts tendered contained the following paragraph: