Citation: R v Dominico Peter Turchino; R v HMF [2005] NSWSC 1214
Court: Supreme Court of New South Wales, Common Law Division
Date: 18 November 2005
Judge(s): Latham J
Background
In October 2003, a de facto couple was living with the woman's eight-month-old daughter in South Strathfield. The mother, identified only as HMF, placed the infant in a portable bath filled with water from a tap running at 67 degrees Celsius. The immersion caused catastrophic scald burns covering approximately 75 percent of the child's body surface. The child screamed for an extended period, and significant amounts of skin shed into the bath water.
Neither HMF nor her partner, Dominico Peter Turchino, called emergency services. Instead, HMF applied cream and shampoo to the burns. In the early hours of the following morning, HMF left the unit with the child in a pram, engaging in various erratic activities in the neighbourhood. Police located HMF at around 3:30 am and discovered the child, already deceased, beneath a blanket in the pram. A post-mortem confirmed the cause of death as severe scalding leading to organ failure.
HMF pleaded guilty to manslaughter. Turchino, who had been present when the scalding occurred and had been told by HMF not to call an ambulance, pleaded guilty to the lesser offence of concealing a serious indictable offence, namely maliciously inflicting grievous bodily harm.
Legal Issues
- The appropriate sentence for HMF on a plea of guilty to manslaughter, carrying a maximum of 25 years' imprisonment, where the offence involved a failure to obtain medical assistance for a severely injured infant
- The appropriate sentence for Turchino on a plea of guilty to concealing a serious indictable offence, carrying a maximum of two years' imprisonment
- The extent to which each offender's subjective circumstances, including mental health, background, and plea, should affect the sentence
- The applicable publication restrictions arising from the identity of the deceased child
Decision
Latham J sentenced HMF to a total term of five years' imprisonment, comprising a non-parole period of three years and nine months dating from 3 November 2003. Her Honour found that HMF bore primary moral responsibility for the child's death. HMF had filled the bath, placed the child into dangerously hot water, and actively refused to allow Turchino to call an ambulance. Despite the agreed facts indicating HMF immediately recognised the severity of what had occurred, she took no steps to summon help for several hours, during which the child suffered without treatment.
Her Honour considered HMF's significant mental health difficulties, a troubled personal history, and the evidence of intellectual functioning in the borderline range. These factors explained, to some degree, the apparent irrationality of HMF's conduct in the hours following the scalding. Latham J afforded a discount of twenty percent for the guilty plea, though the plea came relatively late in the proceedings.
For Turchino, Latham J described his failure to seek help as simply inexplicable for a man of his background and capacities. He functioned in the sound average range intellectually, had a supportive family, stable employment history, and no relevant prior criminal record. While the court accepted he was genuinely distressed about the child's death, his inaction in the face of the scalding of a child he regarded as his own daughter was treated as a serious aggravating feature. A fifteen percent discount was applied for his guilty plea.
Her Honour concluded that a suspended sentence was appropriate for Turchino, given the short period he had already spent in custody under strict protection conditions and his compliance with bail. The sentence was suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 upon his entering a good behaviour bond.
Orders Made
- HMF (manslaughter): Non-parole period of three years and nine months, commencing 3 November 2003 and expiring 2 August 2007; balance of term of one year and three months expiring 2 November 2008; eligible for parole release on 2 August 2007
- Turchino (conceal serious offence): Non-parole period of nine months, balance of term three months; sentence suspended upon entering a good behaviour bond for the term of the sentence pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999
- Publication restriction: Latham J directed that HMF be identified only by initials in any publication, to avoid indirectly identifying the deceased child, as required by the Children (Criminal Proceedings) Act
Key Takeaways
- A failure to obtain emergency medical assistance for a severely injured infant, over a prolonged period and with full awareness of the gravity of the injuries, can ground a manslaughter conviction and attract a substantial custodial sentence.
- Where one offender bears primary moral responsibility (by causing the injury and actively preventing help being sought), the sentencing court will differentiate meaningfully between that offender and a co-offender whose culpability is limited to concealment.
- Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a custodial sentence may be suspended where an offender has already served a period in strict custody and has otherwise complied with bail conditions, even where the offence warrants denunciation.
- Significant mental health difficulties and borderline intellectual functioning can constitute relevant mitigating factors in sentencing, without necessarily reducing the objective seriousness of the offence itself.
- The Children (Criminal Proceedings) Act imposes a mandatory prohibition on publication of a deceased child's name, and the Supreme Court applied this restriction to the naming of associated adult offenders where their identification would effectively identify the child.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Children (Criminal Proceedings) Act (NSW)
Cases cited: No cases were cited in the portions of the judgment provided.