Supreme Court New South Wales Medium Neutral Citation: R v Warren Ross [2014] NSWSC 707 Hearing dates: 28-31 October 2013, 4-8 November 2013, 11-15 November 2013, 19-22 November 2013, 25-29 November 2013, 2-3 December 2013, 28 February 2014, 9 May 2014 Decision date: 30 May 2014 Jurisdiction: Common Law Before: Rothman J Decision: Sentenced to imprisonment for a non-parole period of 30 years, commencing 27 September 2011 and concluding 26 September 2041, and a balance of term being a further 10 years, expiring on 26 September 2051. First eligible for release on 26 September 2041. Catchwords: CRIMINAL LAW - sentence - murder - victim under three years' age - intention to cause grievous bodily harm - infliction of fatal injuries were culmination of punishment or torture - failure to seek medical attention after injury, which attention may have prevented death Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: Regina (Crown) Warren Ross (Offender) Representation: Counsel: E. Balodis (Crown) S. McNaughton SC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Mcwilliams Lawyers (Offender) File Number(s): 2011/310910 Publication restriction: None Judgment Remarks on Sentence 1HIS HONOUR: Warren Ross pleaded not guilty to the murder of Tanilla Opal Warrick-Deaves (the deceased), the daughter of his de-facto wife. On 5 December 2013, after a seven-week trial, a jury convicted the offender as charged. The deceased was aged two years and eight months at the time of her death. 2Because of difficulties associated with the capacity of doctors to gain access to Warren Ross (the offender), the sentence hearing occurred over two days, 28 February 2014 and 9 May 2014. It now falls to the Court to sentence the offender. The Process of Sentencing 3To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. The Court is required to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. Thus, even, as here, where one is speaking of murder as the most serious offence in the criminal calendar, it is necessary to assess the conduct of the offender to determine where, in that range of seriousness, this offence fits. 4It is only for the worst category of offences that one imposes the maximum sentence fixed by the Parliament. A sentence of life imprisonment is the maximum sentence for murder. Whether a particular offence is in that category is not ascertained by imagining conduct that could be worse. Unfortunately, one can always imagine a worse scenario. Nevertheless, the Court must assess objectively the features of the offence and the circumstances of its commission in order to determine whether it is in the category of a worst case or lower down the scale of seriousness within a notional range between the lowest level of culpability and the worst category of case. 5The purpose in sentencing any offender is to resolve what are often, if not necessarily, conflicting sentencing objectives. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. 6Each of these objectives, but particularly the protection of society, personal and public deterrence, punishment and the need for rehabilitation must be assessed having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence charged. These point, most obviously, to the protection of society, deterrence of the offender and deterrence of others who might be tempted to offend, and to retribution. 7Considerations of reform or rehabilitation of the offender may also be significantly affected by the objective circumstances of the offence but they are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated. The capacity for, and the likelihood, if any, of rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. 8This process is one that involves what has been described as "intuitive synthesis". It takes each of the objective circumstances of the offence and each of the subjective circumstances of the offender and synthesises them to achieve the purposes of sentencing already described. 9Every murder is serious. Every murder involves the taking of human life by a person who has a state of mind that elevates the seriousness of the offence to that which is the most serious of crimes in the criminal calendar. As already stated, the maximum sentence for murder is life imprisonment, which penalty is imposed in the worst category of murder. In this case, because the age of the deceased is less than eighteen, the legislature has set a standard non-parole period of 25 years' imprisonment. The standard non-parole period acts as a guidepost in the determination of an appropriate sentence. 10In order to determine the objective seriousness of this offence, amongst those perceived as the most serious in view of society's respect for the sanctity of human life, it is necessary to deal with the circumstances of the offence and some facts leading up to the infliction of the fatal injuries, together with the treatment of the deceased for the period beyond the time when the offender inflicted the injuries from which Tanilla died. Facts 11The offender formed a relationship with Tanilla's mother and moved into her house some two months prior to the period during which the injuries were inflicted. The mother, Ms Deaves, had three children, the youngest of whom was the deceased. The evidence before the Court, including material adduced from the offender, referred to the relationship between the offender and the three children and the fact that the deceased, and her sisters, referred to the offender as "Daddy"; a term of which the offender was particularly proud. 12In the short time that the offender lived with Ms Deaves and her three children, he assumed the care of the deceased and acted in the role of parent. 13In the course of the trial, the Crown adduced tendency evidence relating to the offender's treatment of the deceased in order to prove that he had a tendency to conduct himself in a particular way and had a state of mind relevant to proving that the fatal injuries were inflicted with murderous intent. 14The tendency evidence included the abuse of Tanilla in the street shortly after the offender commenced cohabiting with the family. It also included an incident a month before the infliction of the fatal injuries in which the neighbours heard the offender whipping Tanilla with a belt or rod. The tendency evidence was compelling. 15That evidence, whilst available to the Crown to prove the tendency of the offender to act in a particular way or have a state of mind, is not evidence of the conduct directly associated with the infliction of the fatal injuries and cannot be (and is not) taken into account in assessing the objective seriousness of the offence. 16There are other incidents that establish the context in which the offence was committed, although not all are relevant in assessing the objective circumstances of the offence for sentencing purposes. Evidence was adduced, from an independent witness, of the offender punishing Tanilla. This punishment included forcing her to run laps from one end of a lounge/living area to the other end and back over a significant period of time. At the time the child had a bandaged hand and the offender informed this witness that the child had dropped a toolbox on her hand. 17The toolbox was tendered in evidence. It is heavy. It remains heavy whether or not it contained a metal head mallet, the inclusion of which created a minor controversy. I do not accept that the child would have picked up that toolbox. She did not drop it on her own hand. That issue is largely irrelevant to anything the Court must now decide. 18The aspect of this witness' evidence that is relevant is the exchange between them in which the offender said: "I can make her scream, watch this." (Transcript Page 217) And at a later stage: "Watch me make her scream. I'll tell her I'm getting the belt." (Transcript Page 219) At that point the offender told the child he was getting the belt and she screamed. 19The foregoing is probative of the state of mind of the offender when punishing Tanilla. When the witness rebuked the offender that the punishment was "a bit harsh for the little three year old" his response was that "she deserves it, for not behaving herself." (Transcript 219) 20Tanilla was not yet three at the time that these incidents were occurring. 21By the end of August 2011, the offender was engaged in a process that was intended to toilet train Tanilla. That process included punishment of the kind already described, namely, the running of laps of the lounge room, hitting the child with objects, including an electric cord, forcing the child to stand in one place for extended periods and whipping the child (to the extent that may be different from the foregoing) with a cord or belt. These punishments were inflicted by the offender. 22The offender submitted that I should not accept fully the evidence of Ms Deaves, the mother of the deceased who gave evidence of these episodes. During the course of the trial, repeated in directions, I warned the jury in relation to their acceptance of Ms Deaves' evidence because of the risk that she had minimised her involvement in the offences in question and her involvement in the offence itself together with other factors such as reasons to lie about the offender and the inconsistent statements she gave to police. Nevertheless, the jury, in my view correctly, accepted her evidence, at least in relevant respects. As do I. 23In the period leading up to when the fatal injuries were inflicted, Ms Deaves attested to the fact that Warren Ross was fine about Tanilla soiling herself at first but later became annoyed and very angry about it (Transcript 482). 24In the days leading to her death, the offender was punishing Tanilla in the pattern of the previous punishments, namely the running of laps and hitting her with a belt or cord (Transcript 496). Ms Deaves tried to stop him and the offender ceased for a short time. 25After smoking some marijuana, he again required Tanilla to run laps. Ms Deaves went to the kitchen to cook dinner and while there Tanilla had an accident, soiling herself. The offender took Tanilla to the bathroom and the shower was run. Ms Deaves heard a thud from the bathroom, while she was in the kitchen. 26In her evidence, Ms Deaves described the noise as "a shuddering thud, like something hitting glass". She went to the bathroom and saw that the offender had hold of Tanilla by her hair; the shower was running; the door was open. The shower was cold. 27The offender said to Tanilla: "You don't like cold water, do you? You don't shit in my house. You're an animal". 28Tanilla was shivering. Ms Deaves said "that's enough; she doesn't look good." For that comment, the offender slapped Ms Deaves in the face. 29The offender then banged Tanilla's head, which he was still holding, into the glass of the shower twice. The shower was still running. Water was everywhere. Tanilla looked drowsy, as if she was going to faint. 30The offender then shoved Ms Deaves back into the hallway where she slid in water. There was an argument. 31The offender then took Tanilla to the toilet. He held her over the toilet by one leg; she started to cry and scream. 32The offender was shouting at Tanilla and said: "you're a black dog; you're a black cunt!" He held her over the toilet for some period and then took Tanilla back into the shower. The water was "freezing cold". The offender turned to Ms Deaves and said "get her fucking dressed". 33There was water everywhere from the constant running of the shower. The shower was then turned off. Tanilla came out of the shower but could hardly stand. She dropped to the floor where the offender kicked her, or pushed her with his leg, so that Tanilla slid across the floor on her stomach into the linen cupboard, a distance of approximately a metre. Her head hit the linen cupboard. 34It seems that Tanilla bounced back from the linen closet, and the offender kicked her or slid her using his foot. Once more, Tanilla's head hit the linen cupboard. 35There are stains on the linen cupboard that are consistent with the foregoing story. It is not clear whether the fatal injuries were caused by the banging of the head in the shower or by the banging of the head on the linen cupboard. In either case, it was the conduct of the offender that occasioned it. On one view, it may have been both. 36Despite the caution with which I approach the evidence of Ms Deaves, I accept the foregoing from her evidence and I accept those facts beyond reasonable doubt save for the fact that Ms Deaves has exaggerated her attempt to intervene to assist her daughter, a matter which has no bearing on the offender's culpability. 37The deceased was dressed. The offender told Ms Deaves to wake Tanilla up. The offender grabbed Tanilla by the arm and leg and threw her onto the mattress. 38Ms Deaves placed Tanilla in a double stroller beside the mattress, in accordance with the subsequent instructions of the offender. She sought to warm her by placing a blanket over her. Tanilla was still breathing. 39The next morning, Ms Deaves took oldest child to school. They walked. She picked her up in the afternoon and told her that Tanilla was sick. 40It matters little for the purposes of this exercise, but it seems the events in the shower and the occasioning of the fatal injuries occurred on a Thursday night. Tanilla was left in the pram throughout Thursday night and Friday. 41It would have been plain to all, and, on the evidence, was plain to both the offender and Ms Deaves, that Tanilla was extremely distressed and ill from the beating. Nevertheless, the child was left in the pram and was not taken for medical attention. 42Tanilla died early Saturday morning. The medical evidence, adduced during the trial, establishes that the injuries inflicted by the offender as he repeatedly assaulted her were the cause of death. She died of a cerebral haematoma caused by severe haemorrhaging. If medical attention had been sought immediately there was a good chance that the child would have lived, and may not have been permanently affected by the injuries. That chance diminished over the time during which Ms Deaves and the offender left the child unattended. 43The autopsy revealed significant injuries on the deceased. Most of those injuries do not relate to the infliction of the fatal injuries and I do not take them into account in determining the objective seriousness of the murder for sentencing purposes. 44The fact, if it be the fact, that Tanilla was kept from day care because of bruising is, it seems to me, totally irrelevant to the sentencing exercise in which I am engaged. That sentencing exercise must concentrate on the infliction of the fatal injuries, the context in which those fatal injuries occurred and the treatment of the deceased after the injuries were inflicted. 45Nevertheless, I cannot avoid the comment that this family and these children were brought to the attention of authorities. The authorities visited the home. Yet obvious injuries seem not to have caused sufficient alarm to warrant the children being taken from the home. 46From the foregoing factual conclusions, I find the following matters as relevant to sentence. First and foremost, the victim was a child of two years and eight months in the care of her mother and the offender. Secondly, it was no part of the Crown case that the offender had an intention to kill when he inflicted the injuries. I do find, beyond reasonable doubt, he intended to cause her grievous bodily harm. 47The circumstances of this case render the distinction between an intention to cause grievous bodily harm and reckless indifference to human life of limited value in terms of the objective seriousness of the offence and the ultimate sentence that would be imposed as a consequence. 48Nevertheless, I make it clear that I consider the actions of the offender were such that he had an intention to cause grievous bodily harm at the time he committed this offence. 49I accept that the infliction of the injuries from which the child died were neither planned nor premeditated. Further, notwithstanding the statements recited above as to the colour of the deceased, I do not consider that the injuries were inflicted because of hatred or prejudice against a group of people. 50In the course of oral submissions, the Court was urged to conclude that the offence was committed in a manner that was "spontaneous". I do not consider the infliction of the injuries to be spontaneous. There is a difference between spontaneity, on the one hand, and a lack of planning or premeditation, on the other hand. In this instance, the injuries were unplanned and not premeditated, but the conduct was the culmination of two to three days of the deliberate infliction of severe corporal punishment. The Age of the Victim 51The most obvious factor in assessing the objective seriousness of this offence is the age of the victim. As earlier stated, she was two years and eight months of age. The offender was in a position of trust. I accept that the degree of trust reposed in the offender was not as great as the degree of trust reposed in the deceased's natural parent. Nevertheless, the offender was placed in a position of trust, and willingly and knowingly undertook exercised and ultimately abused that trust. 52The significance of the young age of the victim is a matter of some difficulty in dealing with the principles to be applied. On the one hand, one could not assess the objective culpability of a murder (without any special reference to any particular factor) without having regard to the young age of this victim. Yet, the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 require that I take into account, if the victim were vulnerable, because amongst other things, she was very young. Thirdly, the legislature has fixed a standard non-parole period of twenty-five years' imprisonment in the case of a murder, where the victim is under eighteen years of age. 53As to the last mentioned matter, I accept that the murder of a child of such tender years, as is the deceased in this case, is a very different offence to the murder of a person who is, say, just under the age of eighteen. Not all minors should be treated the same. Nevertheless, the three separate considerations must be applied in a way that does not double or triple count the factor. 54There is no doubt this crime is one that is particularly heinous. No person, with any modicum of humanity, could not be moved by the circumstances of this murder. Yet it is necessary for the Court to determine how best to reflect the circumstance of the youth of the victim and the position of trust of the offender by the application of principles. 55In my view, there is but one offence of murder. The tender age of the victim is a factor which renders, in this case, the objective seriousness of the offence of murder particularly grave. Having considered the age of the victim in that way, I do not further aggravate the offence by the application of the provisions of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act. 56Further, I assess the objective seriousness of this offence within the general offence of murder. The circumstance that I have as a guidepost a standard non-parole period of twenty-five years, a standard non-parole period significantly higher than would apply to the murder of an adult, reinforces the legislative intention that the murder of a child is to be treated more seriously than the murder of an adult. In this case, the age of the victim is a significant factor in the assessment of the objective seriousness of the offence and the standard non-parole period guideline, while a guideline in the overall assessment of the sentence to be imposed, has not affected the sentence I would otherwise have imposed. 57The Crown, in its submissions, pointed out that not all offences that involve an intention to kill are more serious than offences involving an intention to cause grievous bodily harm. Such a submission is a truism. 58Nevertheless, in this case, if there were an intention to kill, and all other things remained the same, the offence would be a significantly more serious offence, as a matter of principle. Likewise, if the infliction of the injuries were premeditated and planned (even if the intention was only to cause really serious injury) the offence would be a far more serious one. The lack of all of those factors move the objective seriousness of this offence out of the worst category. 59It is not that the Court is imagining circumstances that would be a worse case than the one before it. It is that this case, while extremely serious, well above a mid-range of offences of murder and approaching the worst case of murder, is not in that worst category. 60At this point reference should be made to the provisions of s 61 of the Crimes (Sentencing Procedure) Act which provide that a court "is to impose a sentence of imprisonment for life on a person who is convicted of murder if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence". 61I do not consider that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. In my view, it is appropriate that there be a determinate sentence, holding out the possibility of parole, assuming the offender meets the criteria for its grant. Subjective Circumstances 62The offender was born on 2 November 1982. At the time of the offence he was 29 years of age and about to turn 30. He was living with Ms Deaves and her three children. He was receiving a Newstart Allowance and collecting and selling scrap metal. 63The relationship with Ms Deaves was rendered more difficult by the relationship between her and her family, about which the Court has heard. 64The offender had a history of minor injuries, which are of little or no moment. He gives a history of having been diagnosed with bipolar disorder and high-level personality disorder. He was medicated on Seroquel and was medicated at or around the time of the offence. 65The offender smokes tobacco. At the time he was examined by two psychiatrists he was medicated on 100mg of Seroquel (slow-release). 66He had a history of drug use. He started smoking cannabis around the age of eleven or twelve and by the age of fifteen or sixteen he was using amphetamines. He stopped using amphetamines just before he was incarcerated in 2006 and has not used them since that time. Nevertheless, he remained a heavy smoker of cannabis and part of the facts, earlier stated, refer to his smoking just before or during the occasioning of the injuries that caused death. 67His parents were separated when he was three. He gives no history of dysfunction in his early family life. His older brother is a police officer in country New South Wales and his younger brother works in construction. 68He was born and raised in Gosford and had significant difficulties associated with the absence of his mother after the divorce. His father remarried and he had great difficulty with his stepmother. His father and stepmother obtained an Apprehended Violence Order against him at the age of twelve and he was, at that point in time, kicked out the home and lived in a refuge. 69For a short time he worked in construction and/or as a removalist, but most of the time he was either obtaining Newstart Allowance or working as a scrap metal collector or both. He had a number of relationships. He has a ten year old son who lives with the child's mother. He had a second relationship from which he has an eight year old daughter who is being cared for by the offender's mother. 70The offender is a non-association prisoner. He has been involved in fights while in remand, partly, he says, as a result of the offence of which he has been convicted and the alleged contacts of the deceased's father. 71He has a criminal history involving break, enter and steal motor vehicles, common assaults, assault occasioning actual bodily harm and is not entitled to the leniency that might otherwise be afforded a person with no criminal offence history. 72As to his mental state, the opinion of Dr Westmore, who was qualified by the offender, is to the effect that there is nothing in his history to suggest that a psychiatric illness played any role in the matters of which he has been convicted. Nor is there anything to suggest that he is currently acutely mentally ill. He does describe seeing the deceased and hearing her voice, but the psychiatrists take the view that they are not of psychotic origin and are a form of bereavement. That assumes that the experiences are real, i.e. that the offender actually does see and hear the deceased. 73He has some intellectual difficulties and underlying personality problems but essentially his offending comes down to his anti-social qualities. The general import of the opinion of Dr Westmore was confirmed by Dr Skinner, who was qualified by the Crown. 74The offender is of Aboriginal background. There is nothing before the Court to suggest that his childhood or upbringing was in any way dysfunctional or that he suffered discrimination on account of his Aboriginality. None of the factors associated with the principles in Fernando are, on the evidence before the Court, applicable to the offender. 75Lastly, I turn to the issues rehabilitation and remorse. It must be said that there is nothing before the Court to suggest any remorse by the offender. 76The offender submitted a statement to the Court, although he did not give evidence in the sentencing proceedings. That statement does not express any regret for any conduct associated with these offences. Partly, that is explicable by the fact that the offender continues to assert his innocence and denies that he inflicted the fatal injuries. 77However, the statement does not even express regret at the death of the deceased; nor remorse or regret at failing to take the deceased for medical attention. I consider that no remorse is evident. Further, I consider that while there is a possibility of rehabilitation, if appropriate courses were undertaken, the prospects of rehabilitation are poor. 78There are no significant subjective factors that ameliorate the seriousness of the offence or that warrant any form of leniency. Conclusion 79As already stated, I have determined that the objective seriousness of the offence is not one that brings it in the worst category of offences of murder. Nevertheless, I have concluded that it is one that approaches the worst category of case for which a significant but determinate sentence should be imposed. I have taken into account each of the eleven cases in which a person has been sentenced for murder of a young child. No two cases are identical. Nor do I consider that the eleven cases constitute a "range" that mandates, or is indicative of, a particular outcome. 80Bearing in mind all of the factors to which I have made reference, I consider that a head sentence of 40 years' imprisonment is an appropriate sentence. The length of that sentence means that there will be sufficient time, assuming parole were granted, for the offender to reinforce in the community any rehabilitation that may have occurred in prison. I do not find special circumstances. 81The offender, has been incarcerated, for this offence, since 27 September 2011 and the sentence will commence on that date. Sentence 82Warren James Ross, you are convicted that on or about 27 August 2011, at Watanobbi in the State of New South Wales, you did murder Tanilla Warrick-Deaves. 83I sentence you to imprisonment for a non-parole period of 30 years, commencing 27 September 2011 and concluding 26 September 2041, the balance of term being a further 10 years, expiring on 26 September 2051. 84You are first eligible for release on 26 September 2041. ********** Amendments 02 June 2014 - changed 'offender' to 'deceased' Amended paragraphs: 43 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: 02 June 2014