Supreme Court New South Wales Medium Neutral Citation: R v Toohey (No 2) [2017] NSWSC 1217 Hearing dates: 8 September 2017 Date of orders: 08 September 2017 Decision date: 08 September 2017 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: Sentenced to manslaughter of an 11 month old child to a term of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months. Catchwords: SENTENCING – manslaughter – unlawful and dangerous act – death of an infant – offender lost control on one occasion and inflicted several head injuries – offender denied facts implicit in jury's verdict – implications of lack of express remorse – low likelihood of reoffending – relevance of specific deterrence Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing and Procedure) Act 1999 (NSW) Cases Cited: R v Hoerler [2004] NSWCCA 184 Category: Sentence Parties: Regina (Crown) Brendon Toohey (offender) Representation: Counsel: Mr Trevor Bailey (Crown) Mr James Trevallion (offender) Solicitors: Mr Ciro Triscari, Office of the Director of Public Prosecution (Crown) Ms Ngaire Ralph, Legal Aid Commission of New South Wales (offender) File Number(s): 2014/108477 Publication restriction: 1. In any report or publication with respect to these proceedings the victim is to be referred to only by the initials 'IS' and the mother of the victim is to be referred to only by the name 'Ms A'.2. There is to be no publication of the names of the authors of the Victim Impact Statements and those persons are to be referred to in any report as 'the father of the victim' and 'the paternal grandmother of the victim'. Judgment 1. Over seven days late in June and early July 2017 Brendon Toohey was tried at Bathurst for the murder of an eleven month old child. On 6 July the jury returned their verdict: not guilty of murder, guilty of manslaughter. The offender's evidence in mitigation of punishment has been given on 8 September 2017 and he is now to be sentenced. The adjournment after verdict, for two months, was granted on the offender's application, to allow him to obtain a background report on his character and antecedents. 2. The maximum penalty for manslaughter under s 24 of the Crimes Act 1900 (NSW) is 25 years. No standard non-parole period is prescribed. Circumstances of the offence 1. The deceased child will not be named in these remarks having regard to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). I will refer to her as "IS". She was the daughter of the offender's female partner (to whom I will refer as "Ms A", again to preserve anonymity of the child). The offender and Ms A had been in a relationship for approximately four months before the deceased was killed. That is from about November 2013 up to 2 April 2014. The offender was not the father of the child. 2. In the first months of 2014 the offender, Ms A and her three children (the deceased and two older girls, then aged 8 years and 10 years) were living in a rented single story detached house at Mandurama, approximately 74 km south west of Bathurst. The accused was then aged 35 years and Ms A was a few years younger. 3. Ms A was scheduled to undergo surgery at Bathurst Hospital on Tuesday 1 April 2014. The couple arranged for Ms A's father to collect the two older girls from school on the afternoon of Monday, 31 March 2014. On the morning of 1 April 2014 the offender and Ms A drove to Bathurst with the youngest child. Ms A was admitted to the hospital and the surgery was carried out. The offender remained with the child in Bathurst for part of the day. He drove with her back to the house at Mandurama during the afternoon, then returned to Bathurst. The offender and the child were in Bathurst until about 7:00 pm visiting Ms A in hospital. They then went back again to Mandurama for the night. 4. At 11:03 am the next morning, Wednesday 2 April 2014, the offender drove to the front of the Emergency Department of the hospital at Blayney, about 28 km east from Mandurama towards Bathurst. The infant was in the back seat unconscious. Resuscitation and other procedures were carried out by medical staff of the hospital but the child could not be revived. Life was pronounced extinct at about 12:40 pm. 5. On post-mortem examination two areas of external abrasion were found on the right side of the forehead, associated with three small areas of haemorrhage just below the scalp. On the back of the head there was an area of slightly raised bruising which exhibited at the surface a pattern similar to that of a woven carpet. There were three areas of subcutaneous haemorrhage, on the top and on both sides of the head. Internal head injuries were significant brain swelling, fresh subarachnoid haemorrhage over the superior surface of the cerebral hemispheres and fresh subdural haemorrhage low down in the brain case (under the cerebral hemispheres, towards the brainstem). There was also a small amount of fresh haemorrhage at the front of the skull and around both optic nerves. 6. A neuropathology examination revealed several foci of recent (less than 1 – 2 days) subarachnoid haemorrhage in the longitudinal fissure between the two cerebral hemispheres and in the left cerebellum. There were no cerebral contusions, hypoxic or ischaemic neuronal changes, signs of traumatic axonal injury or fractures of the skull. 7. The Crown's forensic pathologist Dr Lyons gave evidence that the impact of the blows which gave rise to the external bruising and abrasions transmitted forces to the brain, resulting in damage to small blood vessels and oedema of the brain. The haemorrhage from the blood vessels and the swelling associated with the oedema caused intracranial pressure, particularly in the region of the brainstem, which interrupted the deceased's respiratory and cardiac functions. 8. Ms A gave evidence that the child was well and happy when last seen by her at Bathurst Hospital around 7:00 pm on 1 April 2014. Ms A described the child as having been active and adventurous and said that as a result she had suffered some impacts to her head, mainly in the area of her mouth, during the weeks before she died. She had made attempts to stand, supported by pieces of furniture, and sometimes lost her balance and hurt herself when she fell. There was no evidence of any accident which could account for the subcutaneous bruising of the head as summarised at [7]. 9. It is implicit in the jury's verdict that they found the external head injuries were the result of several separate applications of blunt force trauma to the head inflicted by the offender and that this trauma was at least a substantial contributing cause of death. The jury were not satisfied the offender had intended to cause death or grievous bodily harm or that he had appreciated the injuries he inflicted to the child's head would probably cause her death. The offender's account of a fall from a trampoline 1. The offender did not give evidence at the trial or on sentence (except that on sentence a letter to the Court was tendered). The Crown tendered to the jury a recording and transcript of his interview by police at 2:55 pm on 2 April 2014 at Blayney Hospital. At that stage he was being treated as a witness rather than as a suspect. He told police the deceased had fallen off a trampoline in the back yard of the home which he occupied with Ms A and her children. A police crime scene examination established that there was a trampoline in the back yard, adjacent to and partly over the concrete top of an in-ground septic tank. The offender said he had placed the deceased on the trampoline whilst he retrieved washing from a clothesline three metres away. According to the answers given by the offender to police, the child had crawled to the edge of the trampoline and "slipped off the edge and she went straight down, headfirst over onto the concrete edge" of the septic tank, below. 2. The offender said he saw the infant at the edge of the trampoline and "she went to put her hands up, and she was kneeling up on the mat". He had tried to catch her as she fell and he thought he "pushed her away from the concrete a bit". According to the offender in this interview the top of the deceased's head hit the tank and she "sort of tumbled over the side of it". She rolled over onto her bottom. She started to scream, the accused picked her up and held her, patting her on the bottom and she stopped crying after five minutes. He said that within about 8 or 9 minutes after she fell off the trampoline he commenced to drive, with the child in the back seat, to Blayney Hospital. 3. It was accepted by Dr Gibson, a biomechanical engineer called by the Crown, that the two abrasions on the child's right forehead could have been caused by collision with a loop of reinforcing bar which protruded from the top of the septic tank directly under the edge of the trampoline. Dr Duflou, a forensic pathologist called in the defence case, and two forensic pathologists called by the Crown also accepted that, if the child had fallen headfirst off the trampoline, impact with the loop of reinforcing bar could have caused the abrasions on the deceased's right forehead. 4. The difference of opinion between Dr Duflou and the other two forensic pathologists was that the latter did not consider such a fall, from a height of 70 cm, could have caused the intracranial haemorrhage and oedema which resulted in death. Dr Duflou on the other hand postulated a hyperextension of the neck resulting from such a fall leading to the internal head injuries, in particular the subdural bleeding in the vicinity of the brainstem. 5. The Crown did not conduct its case on the basis that guilt of either murder or manslaughter should be found upon any factual scenario involving the child having fallen from the trampoline and the offender having been criminally responsible for such a fall. The Crown ran its case solely on the basis that circumstantial evidence established the offender had struck blows to the child's head and that the jury should be satisfied that the mental element requisite for either murder or manslaughter accompanied those blows. 6. The jury's verdict is consistent only with them either not having found it reasonably possible that such a fall from the trampoline occurred or, if such a fall did occur, not having found it reasonably possible that such fall caused the intracranial injury to the exclusion of any substantial contributing cause from the blunt force impacts which the child had sustained at the four sites on her head (in addition to the right forehead). Dr Duflou considered it possible that the subcutaneous bruising at one of those additional sites might have been caused by a secondary impact following a fall from the trampoline. The Crown's forensic pathologists and Dr Gibson discounted this possibility. In particular, Dr Gibson testified that when a human body, including that of an 11-month-old, falls onto a hard surface it tends to slump in the landing position and not to rebound, at least not to a height of any more than 20 mm. He did not think that if the child's head had rebounded off the concrete by 20 mm and then dropped back onto it this could cause bruising at a second site on the head. 7. It is not necessary for me to make a finding whether there was a fall from the trampoline except that, if this occurred, it might explain and perhaps excuse the offender's continued minimisation of his responsibility for the child's death. That is, his persistence (for example in his letter to the Court and in his interview with the psychologist) in the claim that he blames himself only on the account of failure to exercise due care for the child on the trampoline. 8. I am not satisfied on the balance of probabilities that there was any fall as he describes. I find his account in his police interview confused and unconvincing. In some answers he suggested that the child commenced a fall while he was not looking in her direction, whilst he was in a position relative to the clothes line which would have placed him about two metres away. In other answers he claimed that he saw the child fall from a position close enough to reach out and try to stop her. He said that he may even have made sufficient contact with her, before she struck the surface, to push her away towards the edge of the concrete. 9. The offender's account of the aftermath of the fall was equally contradictory and lacking credibility. On one version he realised very shortly after picking the child up to comfort her that she was having difficulty breathing and that she was gasping for air. He said that he rushed to change her nappy, dress her, put her in the car and speed to the hospital. In other answers he claimed that he had set off from Mandurama for Bathurst, to collect Ms A following her discharge from hospital there, but that on the way he thought the child "wasn't breathing properly" and that her eyes were rolling back in her head. Only then had he decided to cut his trip to Bathurst short and to divert to the Blayney Hospital Emergency Department (which is 28 km along the route to Bathurst). 10. The offender told the police he had left Mandurama 8 or 9 minutes after the child's fall from the trampoline. Other evidence in the trial showed that the journey to Blayney would have taken him no more than 14 minutes. Given the time of his arrival there, this would have him departing the residence at Mandurama at about 20 minutes before 11:00 am. However two elderly neighbours gave evidence that they saw him drive away from the residence significantly earlier than this. Both of these witnesses had made statements very shortly after 2 April 2014. One of them put the time at about 9:00 am, by reference to the hour at which a nearby school commenced classes and at which she was accustomed to walk her dog. The other witness put the time at 10:00 am. He was confident that it was well before 11:00 am because by that time he had himself arrived in Blayney for an appointment. 11. These and other contradictory features of the offender's account of a fall from the trampoline cause me to reject it on the balance of probabilities. In any event I am satisfied on the balance of probabilities (and, indeed beyond reasonable doubt) that such a fall, if it occurred, would not have contributed significantly to the intracranial injuries found on autopsy. In that regard I strongly prefer the evidence of the Crown's forensic pathologists to that of Dr Duflou. Dr Duflou's thesis of a hyperextension injury to the neck is not supported by any case study demonstrating the possibility of this result from a short fall of only 70 cm. Nor is the thesis supported by any calculation of the forces resultant from such a fall or of the angle of operation of such forces relative to the normal alignment of the head and cervical spine. His thesis is convincingly rebutted by the evidence of Drs Marks and Lyons. 12. Of the Crown's two forensic pathologists, Dr Susan Marks is a paediatric specialist. In her extensive experience a hyperextension or whiplash injury of the type postulated by Dr Duflou is unknown for a child suffering a fall comparable to that described by the offender. The Crown's other expert, Dr Lyons, considered that the intracranial damage was entirely consistent with and adequately explained by multiple blunt trauma to the head, such as evidenced by the five sites of subcutaneous bruising. The offender's mental state 1. Manslaughter by unlawful and dangerous act and manslaughter by criminal negligence were left to the jury. The verdict is consistent with affirmative findings on one or other of those alternatives or both. I am satisfied beyond reasonable doubt that the offender struck the child's head (probably with his fist) and/or struck her head against something (for example, the back of her head against a floor covered with short pile carpet). The offender thereby committed unlawful acts which carried an appreciable risk of serious injury to the child and which a reasonable person in his position would have realised carried that risk. 2. I do not consider that on the facts to which I have referred, including those which I infer must have been found by the jury, the case can be characterised in terms of breach of the offender's duty of care owed to the child (manslaughter by criminal negligence). Loss of control on the part of the offender 1. Ms A gave evidence before the jury, which was not contested, to the effect that the offender related well to the deceased child and appeared to be very fond of her. Ms A had left the child in his sole care on previous occasions and had never had any reason to think he had mistreated her. This evidence was repeated during the sentence proceedings. Ms A also testified to the offender's good care of, and good relations with, the deceased's two older half sisters. The officer in charge of the investigation, Detective Senior Constable Brennan, interviewed the two older girls and they made no suggestion the offender had ever been violent or cruel toward the deceased. Nor did they complain of any mistreatment of themselves. 2. Staff at the Emergency Department of Blayney Hospital gave evidence of apparently genuine distress exhibited by the offender when he attended with the unconscious child and throughout the attempts of hospital staff to revive and treat her. Similarly in his interview by police the same afternoon and in a second interview the next day the offender appeared extremely emotionally upset about the death of the child. 3. In conversation with hospital staff and in his first police interview the offender said he had been "up all night" with the child. This was the first occasion on which he had minded child overnight on his own. He said she was teething and showed signs of anxiety as a result of separation from her mother. She had not gone to sleep until approximately 1:00 am on 2 April 2014 and thereafter had slept intermittently until woken when a phone call was received from Ms A. Independent evidence showed that the offender answered this phone call at 8:08 am. 4. The offender told police that he worked as a concreter which he found physically tiring. He had not had work in recent days prior to the night of 1 to 2 April 2014. He said that some 3 to 4 weeks earlier he had been prescribed antidepressant medication to assist with sleeping. He had been accustomed to take one of the prescribed tablets each night before bed. He did not describe any significantly beneficial effect from the medication. 5. I infer from this evidence that he struck the child in the way that proved fatal whilst under stress and frustration, trying to cope with her when she was needy and demanding and when he was not able to maintain patience and self-control. The offender's subjective circumstances and antecedents 1. The offender is now 38 years of age. He was born at Blayney, the oldest of 6 siblings. He reported to the psychologist who prepared a report concerning him that his childhood and upbringing were "relatively stable". The offender's four brothers and one sister were all born within 8 years of his own date of birth. His father and mother separated when he was 12. On the evidence of his mother and according to a testimonial from a couple who have been long term family friends, on the departure of his father the offender stood in as "a little dad" and assisted his mother with the care and upbringing of the younger children. 2. He was educated up to Year 9 before leaving school but subsequently returned to complete Years 9 and 10 through a high school external program. For about 15 years after leaving school he worked in a variety of semi-skilled occupations. During the 5 years prior to his arrest he worked casually as a labourer and concreter but his primary activity in that period was as a carer for his mother. She was severely injured at work in 2007 and has not worked again. She was diagnosed with breast cancer in 2009 and has had to undergo radiotherapy of a very debilitating kind. She gave evidence that the offender cared for her over all the years of her disability and illness, both in nursing care, carrying out everyday chores for her and assisting her financially. 3. The offender had a 14 year relationship, from about the time of leaving school up to about 2008, with a partner who bore him two children. He then commenced another relationship with a second partner with whom he had one child. This ended after about two years and the offender had one more relationship before commencing with Ms A in about late 2013. 4. A psychological assessment of the offender was carried out in custody on 23 August 2017. He reported no psychological disturbance prior to the commission of the offence but did say that he had been sleeping only 4 or 5 hours per night. He had no earlier history of emotional or psychological difficulties. His score on a standard test for depression placed him in the "mildly elevated" category. From the evidence given by his mother I find that at the time of the offence he must have been subject to considerable stresses of life. These included concern for the situation of his mother, whose disease has steadily progressed to the point that it is now terminal, and pressures arising from responsibility for day to day care and financial support for his new partner Ms A and her three children. 5. The offender's criminal record contains no entries which bear upon the sentence he should serve for the offence on which he is now before the Court. In his early twenties he was convicted on two separate occasions of driving while disqualified from holding a licence. At age 30 he was convicted of driving a vehicle recklessly and, a few months later, of driving whilst disqualified and of resisting and hindering police. He was in possession of a prohibited drug on 10 December 2012. His only offences of violence have been a common assault on 12 November 2007 (at age 29) and an assault occasioning actual bodily harm, in a domestic setting, on 26 June 2009 (at age 31). Particulars of these offences are not before the Court but they were dealt with in the Local Court relatively leniently, which is an indication that these occurrences were not of great seriousness. Aggravating and mitigating circumstances 1. Under s 21A(2) of the Crimes (Sentencing and Procedure) Act 1999 (NSW) I take into account as an aggravating circumstance that the offence was committed in the home of the deceased (par (eb)), the offender abused a position of trust or authority in relation to the deceased (par (k)) and the deceased was extremely vulnerable because she was so young (par (l)). I do not additionally take into account the aggravating circumstances referred to in pars (b), (g) and (ib)) because they are inherent in the objective features of the offence and are allowed for in my assessment of its objective seriousness. 2. Under s 21A(3) (e) of the Crimes (Sentencing and Procedure) Act I take into account that the offender's criminal record is not significant in the determination of an appropriate sentence for the manslaughter: see [35]. With respect to pars (g), (h), (i) and (k) of s 21A(3), I accept that the offender's emotional reaction and his distress at Blayney Hospital appear from the evidence to have been spontaneous and sincere. The evidence given in the trial and on sentence has provided no reason to doubt his statements to police that he loved the deceased. Those statements are supported by the evidence of Ms A and of Detective Senior Constable Brennan already referred to. 3. He has not in terms expressed remorse. This is not an aggravating factor. I note the absence of remorse for two reasons. First, if remorse were demonstrated it would be a mitigating factor so my finding that this consideration is not present should be stated explicitly. Secondly, the absence of expressed remorse is relevant to my assessment of the offender's prospects of rehabilitation and the likelihood of him reoffending. 4. The offender purports to accept responsibility for the child's death only in terms of negligence. He maintains his denial of criminal guilt and denies having inflicted blows to the child's head. He made this clear to the psychologist who assessed him. The psychologist stated: Since Mr Toohey denied the charge against him, it is difficult to provide an opinion regarding reoffending. In general, he showed reasonable insight and he appeared to be at least of average intelligence. These characteristics can be beneficial if he decides to address his offending behaviour. 1. Matters to which I have referred indicate a reduced risk that the offender would reoffend. Accepting as I do that he was genuinely extremely distressed by the outcome of his loss of control and violence to the child I consider it reasonable to expect that in future he would be aware of his limitations in the management of young children, that he would avoid situations of exposure to such stress and that he would not likely offend again in this manner. In a case such as this, the offender's lack of acceptance of, and remorse for, the assaults upon the child which the jury clearly found does not necessarily heighten the risk that he would reoffend. Even if placed under similar stresses in future, as may well occur, I consider it unlikely he would react with violence towards a child. The Court could be more confident of this if the offender acknowledged and directly addressed what the jury has found. However on the balance of probabilities I consider I should sentence him on the basis that he does not pose a significant risk of repetition of an offence of violence towards a child. Objective seriousness 1. With respect to the range of seriousness of offences of manslaughter in the case of child victims, Spigelman CJ said in R v Hoerler [2004] NSWCCA 184: [42] Plainly a violent attack, albeit not one accompanied by an intention to kill or inflict grievous bodily harm, by a person in a position of trust and responsibility upon a defenceless young child, is a circumstance of considerable aggravation. […] It is a circumstance of such significance that it is entitled to substantial weight in the exercise of the sentencing discretion. The sense of outrage in the community about such a case is so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion. However, there is such a wide variety of other factors which may accompany this circumstance, that sentences for offences which share only this characteristic would not be expected to result in an identifiable sentencing range or pattern. [43] In the case of manslaughter […] the acts constituting the offence and the circumstances of the offender at the time of the offence, may vary over a very wide range of objective gravity. The actual physical assault leading to death can range from comparatively minor force to a sustained beating over a prolonged period of time, incorporating elements of gratuitous cruelty. The personal culpability of the offender may vary from a carer who acts out of despair or in circumstances bordering on accident, to the vicious acts of a sadist. [44] When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. ... 1. Of the purposes of sentencing prescribed in s 3A of the Crimes (Sentencing Procedure) Act, those most relevant to the present case are (a) to ensure adequate punishment, (b) to deter others from offending similarly, (e) to make the offender accountable for his actions, (f) to denounce the offender's conduct and (g) to recognise the harm done to the victim and the community. Whilst recognising the gravity of any offence of causing death, murder or manslaughter, the law measures sentence for such crimes with close regard to the state of intent with which the crime was committed and the significance of that for the degree of moral culpability that may be attributed. 2. Taking into account the jury's verdict I have concluded the offender lost control of himself under the pressure of sole parenting and inflicted blows in frustration which a reasonable person in his position would have realised would be likely to cause serious harm but not consciously intending such harm and exhibiting considerable distress when it resulted. The evidence does not show that his violence toward the child was prolonged or that it involved gratuitous or deliberate cruelty or that there had been any previous instance. What occurred was isolated to a single tragic incident. Length of non-parole period 1. For the purpose of s 44 of the Crimes (Sentencing Procedure) Act I find there are special circumstances which warrant reducing the proportion of sentence which the offender must serve without parole to less than 75%. I conclude that the community would be better served and his rehabilitation would be better served by a longer period on parole under supervision than would result if the statutory default ratio were to be applied. In particular, his subjective circumstances are favourable to his rehabilitation progressing under circumstances of release on parole with regular contact by Community Corrections officers. He is of more mature years than many offenders who come to be sentenced for manslaughter in circumstances comparable to these. Victim impact statements 1. Pursuant to s 28 of the Crimes (Sentencing Procedure) Act there were read to the Court Victim Impact Statements from the father of the deceased child, who was estranged from Ms A, and the child's paternal grandmother. These statements record the devastating distress which the death of this infant has caused and they attract the deepest sympathy. I take full account of these statements as showing the harm done to the father and paternal grandmother of the child, as an aspect of the harm to the community. Sentence 1. The offender has been in custody since his arrest on 9 April 2014, solely on remand for the charge of murder and a related charge for which he has not yet been tried. His sentence for manslaughter should commence from the date of his arrest. 2. Taking into account the objective gravity of the offence and making a due allowance for the offender's favourable personal circumstances and his reasonably favourable prospects of not offending again in a like manner, his sentence is as follows: 1. For the manslaughter of IS on 2 April 2014 Brendon Toohey is sentenced to imprisonment for a non-parole period of 4 years and 6 months commencing on 9 April 2014 and expiring on 8 October 2018 and a balance of term of 3 years commencing on 9 October 2018 and expiring on 8 October 2021. 2. Brendon Toohey will be eligible for release on parole at the expiration of the non-parole period fixed under order (1). 3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of that Act apply to him and to the offending the subject of these proceedings. ********** 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: 11 September 2017