R v Rowe [2007] NSWSC 300

New South Wales Supreme Court

CITATION : R v Rowe [2007] NSWSC 300 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 01/02/2007

JUDGMENT DATE : 5 April 2007

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to a term of imprisonment consisting of a non-parole period of 3 years with a balance of term of 2 years and 6 months. The sentence is to commence on 5 May 2005 and the offender is eligible to be released to parole on 4 May 2008.

CATCHWORDS : Criminal Law - Sentence - Manslaughter after trial - death of baby due to methodone toxicity - unlawful and dangerous act.

R v Hoerler [2004] NSWCCA 184 CASES CITED : R v Blakeney (NSWCCA, unreported, 15 December 1994) R v Marshall [2003] NSWSC 448

PARTIES : Regina v Helena Jane Rowe

FILE NUMBER(S) : SC 2006/646

COUNSEL : T. Hoyle SC - Crown B. Rigg - 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 5 APRIL 2007

2006/646 REGINA v HELENA JANE ROWE

REMARKS ON SENTENCE 1 HIS HONOUR: On 23 October 2006 the offender was arraigned before a jury on a charge of murdering her son, an infant aged 7 months. The child died on 16 January 2004 as a result of the ingestion of methadone. The offender pleaded not guilty and was subsequently convicted by the jury of manslaughter. It now falls to this Court to sentence her for this crime, the maximum penalty for which is 25 years imprisonment. 2 The offender was a long-term drug addict who had been taking methadone for some time before conceiving the child. The child was born methadone-dependent on 20 July 2004. He remained in hospital, being treated for his drug dependency, for six weeks until 31 August. The offender and her child then lived in a unit at Kingswood. They were supported by numerous agencies in the community including the Department of Community Services (DOCS) and the Probation and Parole Service. The offender was receiving methadone under a programme run by the Gateway Clinic. 3 The offender was in a relationship with the child's father, Brendon Galwey, who resided in a unit at Mortdale. On occasions Mr Galwey would visit the offender in Kingswood and sometimes stay the night. The relationship however was a stormy one but it seems that the father was as loving to the child as was the offender. Mr Galway was addicted to amphetamine and on occasions the offender would use this drug in his company after the birth of the child. 4 The offender was unreliable in attendance at the Gateway Clinic and on occasions was refused methadone for various reasons. She would then purchase the drug from a source she had in the community. Therefore, at times she had methadone available in the unit. On at least two occasions the offender had been given information about the drug methadone and the dangers of its misuse when enrolling in methadone programmes. 5 There was a large amount of evidence placed before the jury as to the offender's care of the child. Generally she was coping well although there were examples of insufficient concern for the child's safety. For example, there was evidence of her driving a motor vehicle with the child lying unprotected in the well of the front passenger's side of the vehicle. She delayed having the child immunised. There was also evidence of her leaving the child in the care of an acquaintance and failing to return when expected. However, there was no evidence of the offender ever mistreating the child and to the best of her ability she was a caring and loving mother. 6 Unfortunately the child was difficult to settle, probably as a result of his earlier drug dependency. There was evidence from neighbours of the child crying for lengthy periods of time during the day and night and occasionally the offender yelling for him to stop. The offender had mentioned to members of DOCS that she was having difficulty coping with the child and getting sufficient sleep. Over the period leading up to the child's death the offender fell out with one of her best friends and supporters. The relationship with the child's father became more difficult because she believed he was not doing enough to assist her. He was manipulative of the offender and saw her and the child largely when it suited him. 7 Much of the evidence about the days leading to the death of the child came from Mr Galwey. He had for a period after the death of the child lived with the offender in his unit. It is clear that his parents were not supportive of the relationship. Eventually, as the police investigation proceeded, Mr Galwey asked her to leave. He was a most unreliable witness and has given many inconsistent versions to the police and in evidence at the committal. Unless supported by other evidence, his account could not be relied upon to any degree. This was perhaps due in measure to his frequent use of amphetamine, he was unwell at the time of the trial, and to self-interest. However, I do not believe that he was trying to give false accounts intentionally to prejudice the offender. There was no suggestion in his evidence of her in anyway mistreating the child rather his evidence was supportive of her so far as her general relationship with the child was concerned. There was a suggestion that he might have given the child the methadone from which he died, but I do not believe this is a reasonable possibility for reasons I shall give later. 8 Nor was the offender a particularly reliable witness. She did not give evidence at the trial but had engaged in a lengthy formal interview with police. She had also participated in a videoed interview in a police vehicle retracing her steps on the night the child died and later back at the unit. She told at least one lie in her account of the circumstances leading up to the child's death: she said that she was driven to premises where she sought help for the child when it was clear that she was the driver. This may have been because she was concerned about driving a motor vehicle without a licence, but she persisted in the lie and embellished it in a way that destroys her general credit. She denied giving any illegal drugs to the child but I am satisfied beyond reasonable doubt that she did. 9 It is not clear what occurred on 16 January, the day of the child's death. This is chiefly because the persons who can give evidence about that day are the offender and Mr Galwey and I have noted their unreliability. On the morning of 16 January the offender attended at the Gateway Clinic and was administered methadone that she ingested on the premises. Thereafter her movements are unclear. Mr Galwey has given various conflicting accounts of his movements on that day and the condition of the child at various times during the day. 10 However it seems to me that the following is probably what occurred. At about 3pm, Mr Galwey went to the offender's unit, but she was not home. She returned about half an hour later. The child immediately appeared unwell to Mr Galwey, being lethargic and hot, and he suggested to the offender that he needed medical attention. The offender stated that the child was simply overheated, it being a very hot day. She refused to take the child to hospital even though it was a very short distance from the unit. 11 In an attempt to lower the child's temperature, the offender administered to him some Panadol and a naturopathic medication called Infants' Friend. She removed his clothes and positioned a fan to circulate air over his body. Mr Galwey continued to insist that the child be taken to hospital, but the offender continued to refuse to do so. At about this time a neighbour overheard an argument between Mr Galwey and the offender about taking the child to hospital. At some time after 3.30 pm she left the child in Mr Galwey's care at the unit while she tried to purchase some drugs for Mr Galwey. 12 Approximately 20 minutes after she left the unit, Mr Galwey telephoned her and insisted that she return, as he was concerned about the child's health. The offender returned to the unit 15 to 20 minutes later. At 6.40pm the offender telephoned an acquaintance, Michelle Sava, who resided in the suburb of Londonderry. She said that she was going to visit her to deliver some Christmas presents for Ms Sava's children. The offender asked if Ms Sava knew anyone who could sell her some 'speed'. Ms Sava said she could not help her. 13 Later that evening the offender visited the residence of Jacqueline Conroy, a friend who resided in the Blacktown area. She asked Ms Conroy to baby-sit the child while she attempted to obtain drugs. Ms Conroy declined but saw that the child, who was in the vehicle, appeared unwell. She thought that he should be taken to hospital. 14 At 8.15pm the offender again called Ms Sava indicating that she had become lost in the Londonderry area. Ordinarily the trip from the unit at Kingswood to Londonderry would have taken about 20 minutes but the offender took well in excess of this time to travel that distance. Shortly before 8.30pm, she arrived at the home of Ms Sava. When the child was brought inside the house, it was immediately apparent to both Ms Sava and her partner that he was gravely ill. They insisted on calling an ambulance but the offender said that she would take the child to hospital herself. At this stage it appeared that the child had stopped breathing and Ms Sava formed the view that he was deceased. 15 Shortly after 8.30pm Ms Sava called triple 0. The operator gave instructions for CPR to Ms Sava who in turn relayed them to the offender. At 8.46pm an ambulance arrived but the child was not exhibiting any signs of life. The ambulance officers attempted to resuscitate him and continued to do so until arriving at hospital. Before leaving Ms Sava, the offender asked her to say that a female had driven her to her home. The offender then followed the ambulance. The child failed to respond to the resuscitation attempts and was pronounced dead at the Nepean hospital at 9.44pm. 16 Later toxicology examination of the child's blood and urine indicated that methadone, methamphetamine and paracetamol were present in his blood at the time of death. His urine contained traces of a number of drugs including, amphetamine, methadone, methamphetamine, oxazepam, pseudoephedrine and temazepan. Some of these drugs would have been the breakdown of other substances, so for example the amphetamine and pseudoephedrine were probably related to the methamphetamine. Dr Hulewicz, who carried out the post mortem examination, determined that the cause of death was "methadone and benzodiazepine toxicity with methamphetamine a possible contributory factor". Dr Judith Perl was of the view that the principal cause of death was methadone toxicity. It was the Crown case that the offender had given the child a small amount of methadone to assist him to settle and sleep. 17 The jury's finding that the offender was guilty of manslaughter could have been based upon one of two findings. The jury could have determined that the offender caused the child's death by the commission of an unlawful and dangerous act, that is giving the child methadone. Alternatively they could have found that the offender caused the child's death by gross criminal negligence, in that knowing that her son had been given methadone, presumably by Mr Galwey, she did not seek timely medical assistance for him. I have no doubt that I should sentence her on the former basis. 18 The Crown case that the offender gave the child methadone was in my view overwhelming. The Crown asserted to the jury that she was the only person with opportunity and motive to do so. It is highly likely that the methamphetamine in the child was not given to him intentionally but was the residue in a container or on a spoon used to administer the methadone to the child. Other drugs found in the child were drugs chiefly used by the offender and are consistent with her administering those drugs as well as the methadone in an attempt to settle him. Mr Galwey in my view had no motive to give the child methadone. It was not his drug of choice. But in any event he had relatively little on-going contact with the child. He seemed more interested in playing an electronic game than in the child when he was at the unit. I doubt that he had been too disturbed by the child's restlessness as he was not with him long enough. 19 Yet the offender was having difficulty coping in the period immediately before the child's death and a principal reason was that the child's constant crying was preventing her from getting sufficient sleep. Methadone was a drug used by her and she had it in the unit. Although Mr Galwey may have had the opportunity to give the child the drug on the morning of 16 January that seems to be inconsistent with the child being so ill at 3.30pm that Mr Galwey was insisting that he be taken to hospital in a conversation overheard by a neighbour. Mr Galwey's insistence that the child receive medical assistance seems inconsistent with him having caused his illness. It is not clear how long before the child's death he was given the drug, but it seems to be most likely that it was on the day before his death. If that is so Mr Galwey had no opportunity to do it. The other drugs found in the child's body must have been administered many hours before the child's death when Mr Galwey could not have done so. It is highly unlikely in my opinion that the offender gave the child those drugs but Mr Galwey gave him methadone. 20 Further, as part of the lies told to the police concerning the fictitious person who had driven her and the child to the home of Ms Sava, the offender told police that this person had a child. She suggested that the child might have given something to the child. This was in my view a lie told because she knew that she had given the child the substance that might have killed him and she was attempting to shift the blame. 21 The refusal of the offender to seek medical assistance for the child may be explained by her lack of confidence in the medical profession but it is also consistent with her fear of losing the child if she was found to have mistreated him by administering drugs to him. She was also vehemently opposed to a post mortem examination being carried out on the child suggesting a consciousness of guilt in relation to what she had done. I am satisfied that the only reasonable explanation for all of the evidence is that the offender gave the child methadone in an attempt to settle him when driven to desperation by his insistent crying and her inability to obtain the sleep she required. 22 The offence is clearly a serious one. The child was in the offender's care and so young that any use of drugs carried with it a very significant risk of grave injury to him. The offender must have known that fact but I am prepared to accept that she thought that the relatively small dose given to him would assist him to settle and was driven to this course because of the numerous stressors under which she suffered in the days leading up to the death. She was generally unsuited to care for the child because of her use of drugs apart from methadone from time to time. In hindsight it should have been apparent to those with care and control of the offender and the child that he was at risk due to the offender's drug taking. She received little real support from her mother, who unfortunately added to her problems by her attitude to the DOCS officers. I have already commented on the loss of a supporting friendship and difficulties in the relationship with the child's father shortly before the child's death. 23 Some of her behaviour might suggest that she had little real regard for the child but that is not true. At times she lived with a sense of unreality no doubt cause by her drug usage. She simply was not conscious that her behaviour or conduct might harm the child. I do not believe that she was aware of the risks that she sometimes took with his wellbeing. To some extent I think her refusal to take the child to hospital rather than to seek the assistance of Ms Sava was a lack of realisation of the serious plight of the child. Even when the ambulance officers were trying to resuscitate the child, the offender was speaking of her concerns that DOCS would take him, rather than an acceptance that he was unlikely to survive. Her wish to have a cigarette when she should have been attempting resuscitation herself was part of the same failure to appreciate the reality of the situation that she faced. 24 There is no doubt that the offender has suffered grievously over the death of her son. Some of her behaviour, if taken out of context, might indicate a degree of callousness, such as the cigarette incident and asking Ms Sava to lie about who was driving the motor vehicle at the very time the child was being rushed to hospital. But the evidence is all one way that she loved the child and was distraught at his death. It is difficult to find that there is any contrition for causing his death because she does not accept that she did. But it seems to me to be a situation where lack of contrition does not have any real relevance to sentencing. It may simply be the case that she cannot accept the fact that she was responsible. 25 The offender is aged 26 years. She has a criminal record dating from 1997 for offences of dishonesty and drug offences. She was placed on good behaviour bonds in 2003 with a condition for drug rehabilitation for various dishonest and drug offences. She was sentenced to imprisonment in 2004 for similar offences and was released to parole in July 2004. 26 There is a psychological report in evidence. It indicates that the offender believes that she was hyperactive as a youth and her mother could not cope bringing her up. She was made a State Ward as being "uncontrollable". She spent times with foster families and in an institution until being returned to her mother at the age of 15. She soon entered into a relationship and was introduced to drugs. That relationship concluded and she married another person in March 2003. They separated a short time later. She then entered into a relationship with Mr Galwey. She fell pregnant in October 2003 and Mr Galwey wanted her to have a termination. She refused and they separated. She then went into custody and was released shortly before the child was born. 27 There are conflicting views about the offender's relationship with and treatment by her mother throughout her life. There is some suggestion that her mother may have suffered from a personality disorder and mistreated her but the offender does not accept that this was so. Yet it is clear that her early life was disturbed and disrupted as a result of her involvement with DOCS whatever be the cause. However, she has a strong attachment and commitment to her mother, who is in ill health, and the offender hopes to live with her when she is released. 28 The psychologist found that the offender was suffering anxiety and major depression over the death of her child, then being charged and ultimately incarcerated. She has a dependent personality that accounts for her relationships with her mother and Mr Galwey. There is some suggestion that she may have been suffering from Post Natal Depression. She expressed the view to the psychologist that various agencies were "harassing her" at the same time she was trying to cope with her relationship with the child's father and her fears of failing as a mother. Many of the deleterious aspects of her personality can be addressed by specific counselling and personality development programmes. 29 There was a letter from the chaplain at the Mulawa Correctional Centre tendered. She has visited the offender a number of times and has spoken with her about her problems. She feels that the offender has over time gained insights that will assist her when she is released into the community. 30 The offender gave evidence before me. She has been a protected inmate while on remand for a period of 21 months. At one time she was a limited association inmate that meant she was confined in her cell for nearly the entire day. She spent 14 months in this type of custody. Her present custody seems to be not very different from the general prison population except that the prisoners in her classification tend to get locked down more often because of the lack of staff and there are less opportunities and amenities. She has worked in custody when she can and has been a sweeper and presently covers books. She has reduced her methadone intake over the period on remand so that she was no longer receiving methadone about 3 weeks before the sentencing hearing on 1 February this year. She has received drug and alcohol counselling. The offender has spoken to a psychiatrist while in custody and has been taking an antidepressant. She hopes to undertake further education when released and eventually find some form of employment. 31 It seems to me that there is a need for the sentence to include an aspect of general deterrence in respect of other persons who may resort to illegal drugs or other noxious substances in order to gain temporary relief from a difficult child. Dr Perl gave evidence that it was not unusual for a person to give methadone to a child to calm it. However, there is in my opinion no call for specific deterrence. It is a matter for the offender what she does about drug use in the future. Clearly it is unlikely that she will find herself in a similar situation to that in which she found herself at the time of the child's death. In any event the loss of the child and her consequential grief will do more to restrain her from any similar conduct in the future than any sentence I might impose upon her. 32 As with all manslaughters the sentence must reflect the fact that a life has been taken by the offender's conduct. Here the conduct was purposeful and intentional although of course she did not foresee the death of her child as a result. That would have been the last thing that she wanted or imagined. It was an act arising out of a period of stress on a person who was quite unable to cope with it and the added responsibility and care of a difficult child. There is no history of abuse of the child, although of course he was very young and had not been long in the offender's sole custody. 33 It is difficult to find a range of sentences for manslaughter of this type as it is a relatively infrequent occurrence: see R v Hoerler [2004] NSWCCA 184. There was no violence here and no anger. Rather the offender did an act that was intended to give the child some comfort as well as some relief for herself. That is an unusual circumstance and reduces the culpability of the offender. A case of some similarity is R v Blakeney (NSWCCA, unreported, 15 December 1994) but that was worst factually because of the extended period of abuse of the child. However that accused pleaded guilty to an offence not involving the death of the child and so the offence here, encompassing as it does the child's death is more serious. The sentence in that case was 6 years with a non-parole period of 4 years 3 months. In R v Marshall [2003] NSWSC 448 a sentence of 6 years with a non-parole period of 3 years 6 months was imposed for the manslaughter of a 9 months old child by shaking. There was no history of abuse and the offence was committed in momentary anger and without thinking. The accused had a stronger subjective case than does the offender. 34 There are special circumstances relating to continual assistance for the offender in relation to drug dependency and more fundamental personality issues that no doubt have been responsible for her use of drugs over a long period of her life. Although she has had bonds with conditions for drug counselling in the past, there may now be a commitment that has not existed before given the tragedy she has suffered principally because of her use of illegal drugs. 35 I have reduced the sentence and the non-parole period by about six months because of the period on remand she served in harsher conditions and I have generally taken into account that she will probably serve the whole of the period of her sentence on protection with some loss of amenities. The offender is sentenced to a term of imprisonment consisting of a non-parole period of 3 years with a balance of term of 2 years 6 months. The sentence is to commence on 5 May 2005 and the offender is eligible to be released to parole on 4 May 2008. **********