Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PTC v R [2011] NSWCCA 51 Hearing dates: 9 February 2011 Decision date: 01 April 2011 Before: McClellan CJ at [1] Buddin at [32] Schmidt at [33] Decision: 1. Leave to appeal granted and the appeal upheld. 2. Quash the sentence imposed and instead sentence the applicant to a non-parole period of 2 years and 6 months commencing on 21 December 2009 with a balance of the term of 2 years and 6 months. The applicant is eligible for release to parole on 20 June 2012 Catchwords: CRIMINAL - sentence appeal - manifest excess - proportionality with co-offender - effects of delay in sentencing - onerous custody conditions - assessment of plea discount - appeal upheld on account of delay. Cases Cited: Mill v R (1988) 1 66 CLR 59 R v Borkowski (2009) NSWCCA 102; 195 A Crim R 1 R v K (2004) NSWCCA 130 R v Todd (1982) 2 NSWLR 517 Category: Principal judgment Parties: PTC (Applicant) The Crown Representation: Counsel: S Kluss (Applicant) J Girdham (Crown) Solicitors: A W Simpson & Co (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2009/7744 Decision under appeal Citation: NSWSC 834 Date of Decision: 2010-07-29 00:00:00 Before: R A Hulme J File Number(s): 2009/7744 Judgment 1McCLELLAN CJ at CL: The applicant pleaded guilty to the manslaughter of his 7 week old son. He was sentenced to imprisonment comprising a non-parole period of 3 years with a total sentence of 5 years and 2 months. The essence of the applicant's criminality was in his failure to provide appropriate medical attention for his infant son. The baby had previously been seriously injured by the applicant's partner NLH who was the mother of the baby. 2NLH was sentenced to imprisonment for 4 years and 2 months with a non-parole period of 2 years and 6 months. The sentencing judge reduced her sentence by 30% on account of her plea of guilty and assistance to authorities. The notional starting point for the applicant's sentence was approximately 5 years and 5 months, his Honour allowing a discount of 5% for the plea. 3There was an agreed statement of facts which was adopted by the sentencing judge. It was in the following terms: "7 NLH and the offender had a daughter, PJC, who was born in early 2005. She had been taken into the care of the Department of Community Services when only a few months old but returned to the care of her parents later that year. 8 The couple took up residence in a vacant house on a property known as "Glen Oval", about 20 kilometres from the township of Bingara, sometime in 2005. 9 TC from born on 19 March 2006 at Bellingen Hospital. NLH, was aged 18 at the time and the offender was aged 24. NLH assumed primary care responsibilities for TC. The offender would sometimes feed him with a bottle. When he was about a month old, NLH noticed that he was not feeding properly and was losing weight. However, TC was not seen by any health care professional after he was born. 10 NLH found it hard to cope with a new born baby and a toddler at home. The couple had very little money and they argued frequently. 11 On Thursday 4 May 2006, the offender left the property, leaving NLH at home with the two children. At some stage TC was lying in his bassinette in the lounge room while PJC was playing and running around. NLH was angry and TC was crying. She took hold of the bassinette and shook it. TC continued to cry. She picked him up and then threw him back into the bassinette. He kept crying. She then pushed the bassinette with both hands, causing it to move across the floor and fall over. She then checked TC and found that he was badly hurt. 12 NLH telephoned the offender at about 4.30pm. He came home and she told him that she could not cope and that she had hurt the baby in her anger. The offender became angry with NLH and told her that they should get medical attention for TC. They argued. No medical attention was sought. 13 TC remained in the lounge room in his bassinette during the night. The offender did not allow NLH to be alone with him. At some stage he tried to feed TC using an eyedropper. 14 The following morning, sometime between 9am and 10am, NLH took TC out of his bassinette. She immediately noticed that his breathing was shallow. She gave him a bath in the kitchen sink in order to try and wake him up. His body was limp and he could not support his head. His eyes were open but rolling back in their sockets. 15 The couple made some telephone calls. The offender spoke with a midwife at Bellingen Hospital where TC had been delivered. He was informed that he should call an ambulance. He did not. 16 When TC's breathing became worse he was put in the car and they set off to drive to Inverell Hospital. They drove through Bingara, stopping to purchase fuel, and passed within 400 metres of Bingara Hospital but continued on. 17 I interpolate here that the offender said in his evidence that he did not act upon the advice of the midwife to call an ambulance because he thought there would be difficulties for the ambulance officers finding the property. He also said that he thought that the ambulance would be despatched from Inverell and would then have to return to the hospital there. He thought that it would be quicker if they took TC directly to Inverell themselves. He explained that he did not take TC to Bingara Hospital because he did not think it was a "proper hospital", although he conceded that it would have had an emergency department. He said this was "a silly thing to do". 18 TC stopped breathing shortly after they had passed through Bingara. A passing car was flagged down by NLH and the driver called an ambulance which came from Bingara Hospital. Meanwhile the offender performed CPR. 19 TC was conveyed by ambulance to Bingara. Dr Fisher examined him and noticed extensive bruising across his forehead. NLH told the doctor that PJC had caused this bruising. 20 TC was then transferred to Tamworth Hospital. A retrieval team arrived to transfer him to the John Hunter Hospital in Newcastle. However, his condition was such that he could not be transferred and he died in the early hours of Saturday 6 May 2006. 21 The offender was interviewed by police that morning. He told officers that PJC had been in TC's cot and that this may have caused the bruising to TC's forehead. 22 An autopsy was performed by Professor Timothy Lyons. He determined the cause of death to be a severe closed head injury as a result of a bilateral fracture to the skull. It was also observed that the baby was markedly malnourished. He had also sustained a number of other injuries including abrasions to his ear, neck, chin and left knee. There were also healing fractures of the 6th and 7th ribs and a healing fracture of the right radius. The rib and wrist fractures had been sustained approximately two weeks prior to death. Professor Lyons was of the opinion that the injuries displayed a pattern of child abuse. 23 The statement of agreed facts includes that blood with the same DNA profile as the deceased's was located on a wall of the lounge room and on items of clothing including a baby's jumpsuit, beanie and singlet. 24 Dr Kieran Moran, consultant paediatrician, was of the opinion that the baby died as a result of blunt trauma to the head and that a severe impact would have been required. It was likely that he would have developed swelling of the brain which led to his death. His chances of survival were greatly diminished by the delay in obtaining medical intervention. Life could have been prolonged, or saved, if he had received medical attention at an earlier time. 4The Crown did not contend that the physical injuries which the baby sustained were the result of any action of the applicant. The Crown also accepted that the applicant had not anticipated that his partner would injure the baby. 5The applicant was 24 years of age at the time of the offence. He had no prior convictions. He had a stable upbringing. However, at age 17 he developed a dependence on cannabis which had impacted upon his life. Nevertheless, he had managed to maintain what was referred to as a "reasonable work history." His relationship with NLH was volatile and dysfunctional. 6The applicant has a number of medical problems which include gastrointestinal difficulties, Ross River fever, ulcers, reflux, an hiatus hernia and a slipped disc in his lower back. His experience in gaol has been made difficult by his medical condition. 7Since committing the offence the applicant has formed a new relationship and has the support of his present partner and her family. He has ceased using cannabis. The sentencing judge accepted that he has demonstrated genuine remorse and has good prospects of rehabilitation. The sentencing judge also found special circumstances in that an extended period of supervision would enable him to deal with his alcohol and drug issues. 8The applicant originally raised one ground of appeal being an assertion that the sentence was manifestly excessive. At the hearing the court allowed a further ground of appeal being "that the sentence offends considerations of public policy when it is compared to the sentence of the principal offender." It was submitted that the sentencing judge committed five errors: A. His Honour has assessed the criminality of the offence at a point that is excessive in all the circumstances and lacked appropriate proportionality when considered against the sentence of the "co-offender" NLH. 9The applicant emphasised that the basis for his criminality and that of NLH differed. The applicant was convicted because his conduct fell so far short of the standard of care that a reasonable person would have exercised in the circumstances that it involved a high risk of death or serious bodily harm. NLH pleaded guilty to unlawfully causing the baby's death in a fit of anger. 10The applicant emphasised that he was not aware of the specific injuries to the baby on the day before he died or the history of earlier injuries. It was submitted that the severity of the injuries were not apparent to him. Although it was accepted that the applicant made wrong decisions it was submitted that the evidence indicated that the applicant loved his baby and made the decision to drive to hospital rather than call an ambulance because of the remote location where the couple lived. It was further submitted that the applicant made the decision to go to hospital at Inverell rather than Bingara on the basis of the better facilities that he believed were available. 11The difficulty with the submission is that the matters which are raised are exculpatory of the offence notwithstanding that the applicant pleaded guilty. To my mind his Honour's finding that the gravity of the applicant's conduct lies in his omission to seek prompt medical attention for his baby son is unexceptional. There can be no doubt that NLH's conduct was more serious, and this was reflected in his Honour's findings, but I am not persuaded that in the circumstances his Honour's finding in relation to the seriousness of the applicant's conduct was erroneous. 12In so far as it is appropriate to compare the sentence of NLH with that of the applicant it is important to appreciate that his Honour found that there were factors which reduced NLH's moral culpability that did not apply to the applicant. These factors were her youth, immaturity and post natal depression. The applicant was older than NLH and his evidence indicated that he was aware of her difficulties in coping with the children. 13The gravity of the applicant's conduct arose from the fact that when he returned to the house in the afternoon of 4 May he took no steps to obtain medical attention for the baby then or at any time that evening. The baby was left unattended in the lounge room and the applicant took no steps to check on his condition until the next morning. It was only sometime between 9 and 10 the following morning that he or his partner looked at the baby. The applicant failed to take appropriate steps throughout the morning, ignored advice from the mid wife to call an ambulance and instead made complex arrangements to fund the purchase of petrol to travel to Inverell. He chose not to go to Bingara hospital although he had passed within 400 metres of the turn off to it. 14As I have indicated at the hearing of the appeal counsel for the applicant sought to elevate the disparity of the sentences imposed on the applicant and NLH into an issue of public policy. It was submitted, and it is true that NLH had greater culpability for the crime. However, this does not mean that a heavier sentence than that which is appropriate for the applicant was required. All of the objective and subjective features relating to each offender were required to be considered. B: His Honour was inappropriately influenced by those findings he had made in the sentence proceedings of NLH that was (sic) not in evidence in the proceedings. These findings were not relevant and were not able to be tested by the applicant. 15The applicant submitted that his Honour's remarks relative to NLH were tendered in the proceedings against the applicant. I do not understand this to have occurred. However, his Honour had previously sentenced NLH. It was inevitable that there would be reference to her situation in the proceedings in relation to the applicant. It could hardly be otherwise if his Honour was to ensure that there was an appropriate relationship between the sentence for the applicant and that of NLH. 16The sentencing judge was careful to indicate that when sentencing the applicant he was not dealing with the applicant on the basis of evidence led in the proceedings against NLH and that he had accordingly put to one side the evidence in the earlier proceedings. 17There is no substance in this complaint by the applicant. C. His Honour has not given appropriate weight to the mitigating effects of delay. 18Under this heading the applicant submitted that the delay in sentencing the applicant should have resulted in an amelioration of his sentence. 19The death of the baby occurred on 5 May 2006. Charges were not laid until December of that year. Thereafter there were multiple mentions in various remote local courts while the brief was prepared. The charge of manslaughter was preferred approximately 2 years after the baby died. Thereafter after a hearing the applicant was committed for trial ultimately pleading guilty on a date to which the trial had been adjourned, being 16 June 2010. 20It was submitted that in these circumstances there being significant delay the rehabilitation which the applicant had achieved together with the anxiety he had suffered should have resulted in a reduction in his sentence. 21There is force in this submission. It is plain that the process of investigation and preferring of charges was more lengthy than normally occurs. It was submitted by the respondent that delay was the responsibility of the applicant and his reluctance to enter a plea to manslaughter until June 2010. However, it became apparent in this Court that this may have had little to do with the reluctance of the applicant to face up to his wrongdoing but arose from the circumstances relating to the advice he was given having regard to the evidence available to the Crown in the event of a trial. 22The applicant referred to the decision in R v Todd (1982) 2 NSWLR 517; Mill v R (1988) 1 66 CLR 59 and R v K (2004) NSWCCA 130. In each of those cases the delay was occasioned by the administrative or other processes of the criminal justice system with the result that the sentence hearing was delayed. The delay was not the responsibility of the criminal justice system in the present case but was occasioned by the complexity of the issues which require consideration where manslaughter by gross criminal negligence was alleged. A charge of this character inevitably raises issues which require careful evaluation before counsel can responsibly advise that the level of negligence is so extreme that conviction for manslaughter is appropriate. D His Honour gave insufficient consideration to the onerous conditions of the applicant's custody. 23In his remarks on sentence the sentencing judge said: "41 Prison has not been an easy experience. In his first period of custody until being released on bail he was held primarily at Tamworth, Cessnock and Parklea Correctional Centres. In each case he was in a form of protective custody. He gave evidence that he was held in his cell for all but an hour or two a day. He said that he had no access to education or to reading material. Opportunities for exercise were extremely limited. He experienced difficulty with the food that was available, although at that time his sensitivity to salicylate was yet to be diagnosed. 42 Upon his return to custody last month he notified the authorities of his medical problems and has sought attention but he said the response had been rather limited. There has been no modification to the food that is available to him. He has again been held in a form of protective custody in which his contact with other inmates is limited. He attributed this to the nature of the offence for which he was being held, involving as it does the death of a young child. He gave evidence of an incident that occurred about two weeks ago in which he was threatened by another inmate but it does not appear that this had anything to do with him in particular. The inmate apparently made similar threats to other inmates. In any event, the authorities reacted appropriately by moving the offender to another section of the gaol. 43 There was no evidence placed before me as to the circumstances in which the offender will be held if he is to remain in custody except for the offender saying he thought it would be the same as he has experienced to date. As best as I can forecast, it is likely that it will not be as strictly confined as it has been whilst the offender has been an unsentenced inmate, there being more flexibility in the placement of those who have been sentenced. It seems likely, however, that the correctional authorities will still be constrained, to some extent, in his placement. The problem with his dietary requirements will also likely be a continuing challenge. In these respects I will take into account that the conditions of custody for the offender will be more onerous than for the general run of prison inmates and I will also take into account the evidence, which has not been challenged, as to what he has experienced to date." 24From these portions of his Honour's remarks it is apparent that so far as the evidence allowed his Honour had regard to the conditions in which it was likely the applicant would serve his sentence. The applicant's complaint is with respect to his Honour's finding that it is "likely (that his incarceration) will not be as strictly confined as it has been." I am satisfied that this finding was open on the evidence which was placed before his Honour. The applicant's present complaint is unjustified. E. His Honour has assessed the utilitarian value of the plea at a level that was insufficient, given the late disclosure of the Crown and the complexity of the Crown case. 25The principles relevant to the discount for a plea were summarised by Howie J in R v Borkowski (2009) NSWCCA 102; 195 A Crim R 1. I need not repeat them. 26His Honour assessed the value of the plea as justifying a discount of 5% in the sentence. Although the applicant appears to have misunderstood the Crown's position before the sentencing judge the Crown accepted that the plea could be worth up to 10%. His Honour was not bound by any concession of the Crown and was of course required to make his own assessment of the position. 27The applicant submitted that his Honour erred when he found that the plea only came three weeks after the trial was to commence. It was submitted that the plea was entered once the Crown had served the entirety of its evidentiary material and it was not reasonable for it to have been entered at an earlier date. It was further submitted that because the applicant's representatives had informed the Crown that significant parts of the Crown case were not contested he should be treated as a person who had provided considerable assistance to the authorities minimising the cost of the preparation necessary for his trial. 28In the particular circumstances of this case the applicant's submission should be accepted. In most cases an offender will be aware of his or her actions and, with appropriate advice, will be aware of what if any offence he or she may have committed. The fact that they may delay entering a plea until they can assess the strength of the evidence available to the Crown and decide on their prospects of escaping conviction for an offence which they know they have committed does not entitle them to any particular concessional treatment. The utilitarian value of a plea entered at an early stage will include the fact that by acknowledging their guilt an accused relieves the Crown of a necessity to prepare evidence for the trial. 29In the present case the applicant faced unusual difficulties. Although he of course knew what he had done, without advice he was quite unable to appreciate whether his actions amounted to the crime of manslaughter or indeed any crime. He was beholden to his advisers who, quite properly, were not prepared to advise him to enter a plea until the entirety of the Crown brief had been served. 30There is no doubt that the applicant is remorseful and deeply affected by the fact that his errors of judgment ultimately contributed to the death of his child. However, during the period from the child's death until entering a plea he has been able to put his life in order demonstrating a far greater level of both maturity and responsibility than previously. To my mind this should also have been reflected in his sentence. It was inappropriate in the circumstances to require the applicant to accept responsibility for that delay which was occasioned by the need for him to receive the advice of those appearing for him. 31Accordingly, I would intervene and making allowance for these matters reduce his non-parole period by six months with a modest reduction in the overall term. The sentencing judge's finding of special circumstances was appropriate and sufficient to justify the reduction in the non-parole period. Orders (1)Leave to appeal granted and the appeal upheld. (2)Quash the sentence imposed and instead sentence the applicant to a non-parole period of 2 years and 6 months commencing on 21 December 2009 with a balance of the term of 2 years and 6 months. The applicant is eligible for release to parole on 20 June 2012. 32BUDDIN J : I agree with McClellan CJ at CL. 33SCHMIDT J : I agree with McClellan CJ at CL. ********** 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. Decision last updated: 05 April 2011