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Supreme Court 23 December 2003

R v WILSON

[2003] NSWSC 1257

Assault & violenceHomicide
SENTENCING MANSLAUGHTER CONVICTION AFTER TRIAL FOR MURDER FOSTER CARER OF YOUNG CHILD DEATH BY SHAKING AND BLOW TO HEAD EXTENT OF CULPABILITY AND SERIOUSNESS

Citation: R v Wilson [2003] NSWSC 1257
Court: Supreme Court of New South Wales
Date: 23 December 2003
Judge(s): Miles AJ

Background

The offender was a foster carer who, with her husband, had taken in a 21-month-old boy and his three-year-old sister in March 2001. The child had presented with repeated symptoms of illness during the fostering period, and had been taken to doctors and hospital on several occasions without a clear medical explanation being found.

On 22 May 2001, the child was found unresponsive at the family home. The offender carried him to a nearby medical surgery, where the treating doctor pronounced death and applied unsuccessful CPR. A post-mortem examination revealed multiple injuries, including recent scalp bruising, subdural haemorrhage, retinal haemorrhage, brain swelling, a ruptured stomach, and older, partially healed injuries consistent with prior trauma.

The Crown prosecuted the offender for murder, alleging she had inflicted the fatal injuries with intent to cause grievous bodily harm. The jury acquitted her of murder but returned a verdict of guilty of manslaughter, finding that the child died from an unlawful and dangerous act but that the requisite intent for murder had not been proved.

  • What sentence was appropriate for a manslaughter conviction arising from the death of a foster child by shaking and a blow to the head?
  • What weight should be given to general deterrence in sentencing a foster carer for child abuse resulting in death?
  • Whether the sentence should exceed the usual range for manslaughter, given the circumstances of the offending.
  • How the offender's apparent lack of remorse and continuing denial of responsibility should be assessed in the sentencing exercise.

Decision

Miles AJ accepted that this case warranted special consideration given the vulnerability of the victim and the position of trust the offender occupied as a foster carer. The child was among the most disadvantaged in the community, having lost his father and been placed in care because his mother could not care for him. The court acknowledged that courts have a role in protecting such children.

However, Miles AJ declined to impose a sentence above the ordinary range for manslaughter. His Honour reasoned that making already heavy sentences heavier was unlikely to deter carers in moments of weakness or frustration, and risked instead deterring responsible people from taking on the demanding role of foster parenting altogether.

The offender did not give evidence at trial and continued to deny responsibility for the child's death. Miles AJ found there was no evidence of remorse, though he acknowledged the possibility that the offender was in a state of psychological denial rather than conscious dishonesty. Psychiatric evidence was taken into account, along with the harsher conditions the offender would face in custody given her mental health.

The court backdated the sentence to 28 October 2003 to account for the approximately six weeks and three days the offender had already spent in custody. No special circumstances were found to justify a reduction in the non-parole period.

Orders Made

  • Sentence of nine years imprisonment, commencing 28 October 2003 and expiring 27 October 2012.
  • Non-parole period of six years and eleven months, commencing 28 October 2003 and expiring 27 September 2010.

Key Takeaways

  • The Supreme Court confirmed that manslaughter arising from child abuse in a foster care context is a serious offence warranting significant punishment, but did not treat it as automatically requiring a sentence above the ordinary range for manslaughter.
  • A sentencing court considering general deterrence in child abuse cases must weigh not only the goal of deterring abusive conduct, but also the risk that exceptionally heavy sentences may discourage suitable people from accepting the responsibilities of foster care.
  • Where an offender continues to deny responsibility, the absence of remorse is a relevant sentencing consideration, though courts may temper that assessment where psychiatric evidence suggests the denial reflects a psychological inability to confront the offending rather than a deliberate attitude.
  • Pre-sentence custody, even where relatively brief, is a recognised factor that can justify backdating a sentence.
  • Deteriorating psychiatric health in custody was acknowledged as a hardship, but did not, on the facts here, establish the "special circumstances" needed to alter the statutory relationship between the head sentence and the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Woodland [2001] NSWSC 416
- R v Vaughan (1991) 56 A Crim R 355
- R v Ditford (1992) NSWCCA (17 March 1992)
- R v Bilton [2000] NSWSC 923
- R v Marshall (2003) NSWSC (23 May 2003)
- R v Vangelder (unreported, 1991)
- R v Monroe [2003] NSWSC 168