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Supreme Court 20 December 2000

R v Recalde

[2000] NSWSC 1247

HomicideDrugs
CRIMINAL PRACTICE PROCEDURE SENTENCING MANSLAUGHTER

Citation: R v Recalde [2000] NSWSC 1247
Court: Supreme Court of New South Wales (Criminal Division)
Date: 20 December 2000
Judge(s): James J

Background

The accused, Pablo Daniel Recalde, was charged with the murder of a six-month-old infant, Anthony Boyce, who died between the evening of 24 February and the afternoon of 25 February 1998 at Budgewoi on the Central Coast. The accused had been living in a de facto relationship with the infant's mother for approximately two months and was not the baby's biological father.

The post-mortem examination revealed serious injuries including a facial scald, skull fracture, bilateral subdural haemorrhage, retinal haemorrhages, a healing rib fracture, and multiple bruises. The pathologist concluded that these injuries were not accidental, and that death resulted from the combined effects of shaking and an impact head injury.

The accused pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment, partly because the infant's mother had been subpoenaed but could not be located to give evidence.

  • What was the appropriate sentence for manslaughter of an infant in circumstances involving heroin use, shaking, and impact injury?
  • Whether the case attracted the enhanced discount for guilty pleas under the principle in R v Ellis (1986) 5 NSWLR 603, which applies where guilt would not otherwise have been discovered and established.
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act to justify a longer-than-standard ratio between the non-parole period and the total sentence.

Decision

James J accepted the accused's account as set out in the prisoner's signed statement of facts. According to that account, the accused had injected heroin and lost consciousness, accidentally knocking an unshaded electric lamp onto the sleeping baby, causing a burn to the forehead. He then attempted to soothe the child but, some time later, while holding the baby, he shook the infant and struck its head against a hard surface. He told the baby's mother the following morning that he had burned the baby, but she did not go into the room to check on the child until the afternoon, when the baby was found lifeless.

His Honour considered the offence objectively serious, noting the victim's extreme vulnerability as a six-month-old infant, the prisoner's assumption of responsibility for the child's care, and the failure to seek medical assistance. Despite accepting some remorse, the court treated the objective gravity as significant and the failure to summon help as an aggravating feature.

On the Ellis discount, His Honour declined to apply the enhanced discount available where a guilty plea amounts to the accused effectively coming forward to expose guilt that would otherwise not have been discovered. The court found that, given the circumstances, it was not the case that guilt would likely have remained undiscovered but for the accused's disclosure. A standard discount of approximately ten per cent was applied for the guilty plea.

Special circumstances were found under section 44(2) of the Crimes (Sentencing Procedure) Act, taking into account the accused's youth, his drug addiction, the fact he would be serving the sentence under strict protection, and his need for a proportionally longer supervised period upon release. These factors justified departing from the standard one-third ratio between the non-parole period and the head sentence.

Orders Made

  • The accused was sentenced to nine years imprisonment, commencing 19 June 2000.
  • A non-parole period of six years was set, commencing 19 June 2000 and expiring 18 June 2006.
  • The earliest eligible parole date was set at 19 June 2006.
  • Three months and five days of pre-sentence custody were taken into account.

Key Takeaways

  • The Supreme Court declined to apply the Ellis enhanced guilty plea discount where the evidence did not support a finding that guilt would have remained undiscovered but for the accused's disclosure; a standard ten per cent discount applied instead.
  • Extreme vulnerability of the victim, assumption of a caring role by the offender, and failure to seek medical assistance were all treated as features that elevated the objective seriousness of the manslaughter.
  • Special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act were established through a combination of factors: the accused's youth, drug dependency, strict protection classification, and rehabilitative needs upon release.
  • Sentencing for manslaughter involves a wide range of outcomes depending on the facts; the court distinguished this case from R v Murdoch, where deliberate and calculated abuse attracted a higher result, while still imposing a substantial sentence reflecting the infant victim's death.
  • Where the key prosecution witness cannot be located and conflicting accounts exist, the Crown may accept a manslaughter plea even on a serious indictment; the factual basis accepted at sentence then shapes the entire sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances and non-parole periods)

Cases
- R v Ellis (1986) 5 NSWLR 603 (enhanced discount where accused comes forward and guilt would not otherwise have been established)
- R v Howard, Supreme Court of NSW, 31 August 2000, Studdert J (unreported) (comparative manslaughter sentence)
- R v Murdoch, Court of Criminal Appeal, 10 December 1998 (unreported) (comparative manslaughter sentence involving deliberate child abuse)