R v Rees [2012] NSWSC 922

Supreme Court New South Wales

Medium Neutral Citation: R v Rees [2012] NSWSC 922 Hearing dates: 26, 27, 30, 31 July, 1-3, 6, 7, 9 August 2012 Decision date: 15 August 2012 Jurisdiction: Common Law - Criminal Before: Grove AJ Decision: Danielle Rees is sentenced to a total term of 5 years consisting of a non-parole period of 3 years and 2 months commencing 10 August 2009 and expiring on 9 October 2012 with a balance term of 1 year and 10 months commencing on 10 October 2012. Catchwords: SENTENCE - manslaughter - child victim Category: Sentence Parties: Regina Danielle Maree Rees (Accused) Representation: Counsel: Mr M Fox of counsel (Crown) Ms D Yehia SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2009/67974 Publication restriction: The victim to be identified by pseudonym A.

SENTENCE 1Danielle Rees, you have been found by the jury to be not guilty of murder but guilty of manslaughter and it is now my task to pass sentence for the crime upon which you stand convicted. 2It is not my function to endorse or otherwise the jury's verdict, but a chronicle of many of the circumstances leading up to the death of your daughter, A, on 21 July 2009 gives an ample justification for their finding. 3You were born in 1985 and were, with two younger brothers, raised in the Wollongong area. Your father had been verbally and physically abusive towards you, and your parents separated and divorced when you were about aged 11. Responsibility for your brothers devolved on you to some extent as your mother engaged in full time work. However, she formed a relationship and married Paul Rand and you found it a struggle to establish, as you eventually did, a reasonable relationship with him as your stepfather. Unfortunately, your relationship with your mother was not close. It is likely that your very private personality inhibited closeness, but the result was that you felt that you could not look to her for support when you were not coping with circumstances that arose in a relationship while you were a young mother. Paradoxically, as a result of your confinement in custody, that situation appears now to have altered. 4After school, you obtained a scholarship to train in hospitality management. While training, you worked in Sydney and later moved to work on resort islands off the far north Queensland coast. 5When you were aged 21 and back in Wollongong for a time you met Matthew Kettley and a relationship between you formed. He was a builder working substantially in the eastern suburbs of Sydney and in time you moved to live together in a flat at Edgecliff. About five months after meeting him, your and his engagement was announced. You became pregnant and your daughter was born in February 2008, two days before your 23rd birthday. 6An appropriate description of your relationship with Matthew Kettley is that it was disastrous. 7Even before the birth of the child, arguments erupted and Kettley would bang his fists against his head, drive his head against walls and go off in his car, speeding off and threatening to drive over a cliff. Before leaving, he would on occasions grasp your arms and, as you put it, bail you up against the wall. 8With the arrival of the infant, you had accommodation in a flat at Wollongong which your parents had purchased as an investment. Kettley continued to work in Sydney, sometimes six days a week, but when at home the arguments continued with similar conduct by him of the sort already described. On one occasion, he drove off at speed taking the child in the car with him. In addition, he began to make constant criticism of your capacities as a mother and housekeeper. 9Despite these occurrences, I am satisfied that you responded by giving an almost obsessive degree of attention to keeping the house and tending to A. All of the relevant witnesses testified to this and the word "immaculate" was a frequent descriptor as to the quality of your care of the child and your maintenance of the home. Notwithstanding the conduct of your partner, I am also satisfied that you were prepared to forgive his transgressions with an aim of creating a stable family unit. This was reported by a psychiatrist as the "yummy mummy fantasy". 10Coping with constant criticism and your partner's misconduct became increasingly difficult as you were sinking into a developing depression. I accept your evidence that, to external observers, Matthew Kettley showed none of the behaviour that he was inflicting on you. At the same time, your own predisposition for privacy meant that the situation would not be revealed and you lacked the closeness in familial ties which could have led to your receiving needed support. 11Things became worse and in September 2008, Kettley left to work in Queensland. In fact, I believe that he was at least ambivalent about continuing in the family unit but others were given to understand that he was going there with a view to seeking employment and having you and the child later join him. You continued to seek to maintain contact and build a relationship although the indications for success were by that time poor. Even on the telephone, arguments erupted. 12A significant deterioration commenced at Christmas 2008 when Kettley returned to Wollongong and initially resumed living with you at the flat. His behaviour shortly thereafter was described by his own mother as appalling. I agree. Of course my task is not to assess his behaviour except to demonstrate extreme level of stress which his calculating misbehaviour and mistreatment undoubtedly visited upon you. 13While you were pregnant, you and he had holidayed in Bali, Indonesia. This appears to have represented an island of relative content in the unhappy sea of the relationship. It was planned to return there and bookings were made for January 2009. 14On the day after Boxing Day, there was an argument and Kettley moved out of the flat. It is now known that he then met a woman called Sarah. He came back to your flat and collected his passport. Within days he went to Bali with Sarah and they had arrived there by New Years Eve. He cancelled the bookings for the planned trip with you. He told you that that cancellation was provoked by work commitments. 15You found out about the trip with Sarah when, as a result of a request to send his resume, you accessed his computer and found photographs of them in Bali endorsed with expressions of affection. His deceitful conduct extended to contacting you by telephone from Bali and, not revealing that he had gone there with another woman, he expressed his love for you and his desire to make your relationship work. 16There followed months of more lies and deceptions when Kettley would ask for reconciliation but in fact continue his relationship with Sarah. I also observe that he did not in his evidence contradict the suggestion that he was also conducting affairs with other women in Queensland. In pretended pursuit of reconciliation, he persuaded you to visit him in Queensland with the child whilst he was arranging for Sarah to come there to see him as well. 17As a result of his visit at Christmas, you had again become pregnant but miscarried. You were left to deal with this alone. Kettley's duplicity continued. It was discovered that he had, after return to Wollongong, taken Sarah and her son for a weekend in the snow in the Australian Alps. At the same time he was making protestations about making the relationship between you succeed and then changing his mind and rejecting it. Among the distresses impacting upon your developing depression was a concern about A's future custody, to which I will refer shortly. 18When arguing with you, Kettley compared you adversely with Sarah who apparently had a tertiary education and ran a business of some sort. He rained insults on you with such names as fat whore, slut, bitch, dog, lazy, hopeless, worthless and going nowhere in life. 19I accept your evidence that, depressed and vulnerable as I find you to have been, you came to believe that there was substance in his criticisms and insults. 20Added to the burdens imposed upon you was a threat to take custody of the child from you. In an effort to start anew, you proposed moving to Cairns where you had friends from your days working at the resorts and you thought you could get employment compatible with caring for A. Objectively, Kettley's chance of getting custody would be assessed as minimal, but in your state of depression and, I am satisfied, disordered thinking, you believed his assertion that he could take custody away from you. His conduct in Queensland suggested that he had no real commitment to Sarah and you became deeply concerned about what A's future would be if he was able to fulfil the threat to take custody away from you. 21By July, your condition had become so severe that you contemplated drastic means of escaping the misery that your life had become. You researched methods of suicide on the Internet. You composed long letters to Kettley and to your mother designed to be found after the deaths of both you and A. 22It is important to record that I accept the evidence, particularly that given by Dr Westmore, that you had in effect focussed your whole being upon love for the child and that on 21 July something happened to your mental state that caused you to act in stark contrast to that love. 23You placed A in the bath. She was then aged 17 months. You turned on the taps and left her unattended, closed the door and sat outside the bathroom waiting. You foresaw the probability of death but nevertheless continued with your acts. 24I am, however, also satisfied that at the time of those acts you were suffering from an abnormality of mind from an underlying condition labelled as an adjustment disorder of severe intensity. Although only one of the elements suffices to found the jury verdict, I am satisfied that your capacity to understand the events, to judge whether your actions were right or wrong and to control yourself were all substantially impaired at that time. 25Your behaviour thereafter is confirmatory of those findings and your disordered mental state. You dressed the child in a christening robe. You lay and slept with the deceased infant. You did not know what to do. You delayed for two days. Eventually you went to Sydney and told Kettley that the child was dead. I do not find your visit to the Gap, nor the throwing of a card and flowers over the precipice, inconsistent with the finding as to your impairment at the relevant time. Neither do I regard attempts at self-harm, by ingestion of pills and alcohol or cutting your arm with a Stanley knife, as undermining any findings. I mention that your letter to a child who would have been born but for the miscarriage is, if anything, also confirmatory of a departure, to some extent, from rational norms. 26I would hope that it is apparent from what I have said that, having regard to my finding of the existence of all three factors, the impairment was, in my view, beyond that which would be required to make out the partial defence. Further, observing the enormous disparity between your conduct as a loving, caring and diligent mother and your action in leaving the child to die manifests that at the latter time your relevant capacities were impaired to a very high degree. Whatever be the appropriate psychiatric label for your state as you sat mute and disconnected from the events taking place behind the door in the bathroom, I find your responsibility for what occurred is significantly diminished. 27In making those findings and remarks, I do not overlook that manslaughter is unlawful homicide. It is often rightly said that it is the duty of the courts to protect and preserve all human life and punish those who unlawfully take it. This is of signal importance when what is being considered is the taking of the life of a small infant. 28There are a number of factors that I take into account in sentence assessment. You are a young woman, now 27 years of age. You have no other conviction. I am satisfied that you are remorseful and contrite for what you have done and I agree with your counsel's submission that it is likely that your deed will haunt you throughout your life. The law recognises that certain other circumstances should be weighed as matters of mitigation and I take them into account accordingly. You offered to plead guilty to the offence of manslaughter which is the outcome of the jury verdict as long ago as 29 September 2010 in the Local Court. On subsequent arraignment, you have pleaded guilty to that offence but the Crown declined to accept such plea in discharge of the indictment. In the event, there was no specific utilitarian value in saving the cost of trial and associated expense and I do not make a calculated discount but I do take the offer and the pleas into account as factors weighing in your favour in assessment. In addition, you made practical admissions of fact and your case was conducted with focus on the issue of substantial impairment without challenge to the Crown case otherwise. That, again, is a matter to be weighed in your favour in sentence assessment. 29You have been in custody since your arrest on 10 August 2009 and your sentence must date from then. As well as time in the forensic hospital, you have been held in the general prison population, although for significant times in protection. Protective custody is frequently more onerous than being in the general prison. I have no evidence about your particular handicap whilst in protection and I can only give this factor a minor amount of weight. 30As matters of potential aggravation, the Crown has pointed to the vulnerability of child, the position of trust you were in as a mother and a degree of planning being involved. The two first mentioned are obvious, however, any planning as such was minimal. The letters to which I have already made reference wrote about homicide/suicide but the content seemed more to reveal intentional ruminations than actual planning. I do not accept that you took the child into the bathroom with a planned intention to cause her death. No one has suggested that what brought you here is other than tragic. I am of course aware that the statutory maximum penalty for the offence of manslaughter is 25 years but it is no novel proposition that because it comprehends all forms of punishable homicide other than murder, the range of culpability is so wide that it is not possible to point to any established pattern of sentencing. 31To the extent that reference to other cases might assist, counsel have drawn my attention to a range of these. Now is not the occasion for legal analysis to inflate the content of these remarks. I do make some observations about the cases that have been drawn to my attention. No case is, of course, identical or even merely substantially comparable to the present. In the three instances to which attention was directed by the Crown Prosecutor, two of these resulted in minimum terms of custody less than you have already been detained and the third involved custody for 4 years, however in that case there were two infant victims. 32Ms Yehia of Senior Counsel has prepared a schedule of outcomes of sentences for manslaughter of a young child, although in fact one referred to an offence of infanticide. The majority of sentences followed pleas of guilty and only a few involved substantial impairment or, as formerly, diminished responsibility. I have paid particular attention to the cases where the minimum term of custody exceeded three years, as you have already been in custody longer than that period. Except in one instance, these were cases of unlawful and dangerous acts by shaking or otherwise battering the child. A single case result which is indicated to arise from substantial impairment with a minimum term of 3 years and 6 months, also is summarised involving shaking a nine-month old baby and striking the head against a brick fireplace. The mental condition of the offender was reported as incapacitated by cannabis use. It is important to note that you have no history of abuse or neglect of A. Quite the contrary, the evidence is that your care of her was exemplary. As I have said, I accept Dr Westmore's opinion in particular that something happened and your depression and depersonalisation led to actions which you couldn't properly assess and control. The evidence at the trial has not suggested that you pose a future risk to yourself or anyone else. For obvious reasons, this was not explored with the psychiatric witnesses but I reach that conclusion based upon the whole of the evidence including the pattern of circumstances during your three years of incarceration. In conventional language, I find you have good prospects of rehabilitation. 33It is the submission of both counsel that I should find special circumstances so as to vary the division of the total sentence into non-parole period and balance term in favour of your earlier release than application for statutory formula whereby the latter should not exceed one third of the former. The basis of the submissions was a desirability for an extended term of supervision whilst on parole. I agree with the submissions and make a finding as submitted. 34Danielle Rees, for the manslaughter of A you are sentenced to imprisonment consisting of a non-parole period of 3 years and 2 months commencing on 10 August 2009 and expiring on 9 October 2012 with a balance term of 1 year and 10 months commencing on 10 October 2012. The total term is therefore 5 years. 35The earliest date of your eligibility for parole is specified as 9 October 2012.