Citation: R v Thurlow [2007] NSWSC 1203
Court: Supreme Court of New South Wales
Date: 26 October 2007
Judge(s): Mathews AJ
Background
The offender was the de facto partner of the infant's father and had become one of the baby's primary carers when the child was about seven weeks old. The infant was 16 weeks old at the time of her death in July 2004. Both the offender and the child's father were heroin-dependent at the time, and the offender had been unable to access a methadone programme.
On the morning of the death, the offender was alone with the baby after the father left for his drug treatment appointment. The infant had been unwell and crying persistently for several days, leaving the offender sleep-deprived. The offender admitted that, in a state of frustration and exhaustion, she put the baby down onto a futon bed with considerable force, causing the child's head to strike a wooden armrest. The resulting skull fracture was described by the pathologist as a massive head injury causing immediate unconsciousness. The offender did not call for medical assistance but instead ran with the baby to a nearby home, where the infant was found to be already dead.
For approximately two years after the death, the offender denied any involvement across three separate police interviews. She was finally arrested in July 2006 and confessed. During her first days in custody she also attempted to persuade a fellow inmate to falsely confess to the killing, an act giving rise to separate criminal charges.
Legal Issues
- What sentence was appropriate for the manslaughter of a 16-week-old infant, where the offender had denied involvement for two years before confessing?
- What weight should be given to the offender's background, drug dependency, sleep deprivation, and personal vulnerability as mitigating factors?
- What sentence was appropriate for attempting to pervert the course of justice by soliciting a false confession from a fellow inmate?
- How should the two sentences be structured to reflect the principle of totality, and did special circumstances justify departing from the standard ratio between the non-parole period and the balance of term?
Decision
Mathews AJ characterised the manslaughter as falling in the mid-range of objective seriousness. The victim was a wholly defenceless infant in the offender's care, and the offender had failed to seek medical help after inflicting the injury. However, the offender had not intended to kill or injure the child, and the court accepted that her actions arose from a combination of drug withdrawal, severe sleep deprivation, and personal fragility. The court found she had minimal personal resources to draw upon and had herself been a victim in many respects throughout her life.
The perverting-justice offence was treated as a serious aggravating matter. Shortly after confessing, the offender had attempted to persuade a stranger in custody to fabricate a false confession, going so far as to prepare a written script for that person to adopt. Mathews AJ noted the offending struck at the integrity of the administration of justice and warranted a separate custodial term.
In the offender's favour, the court recognised her early guilty pleas in the Local Court, which attracted a full 25 per cent discount. Her remorse, her difficult personal history, and the hardship she experienced in custody on protection (a form of protective segregation for vulnerable prisoners) were also taken into account.
The court found special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of term. The accumulation of two sentences, the offender's particular vulnerability, and her anticipated need for support upon release all contributed to that finding. The sentence for perverting justice was structured so that its balance of term was subsumed within the manslaughter sentence.
Orders Made
- For the offence of doing an act with intent to pervert the course of justice: imprisonment with a non-parole period of nine months (commencing 20 July 2006, expiring 19 April 2007) and a balance of term of seven months.
- For manslaughter (taking into account a further perverting-justice offence on Form 1): imprisonment with a non-parole period of four years and three months (commencing 20 April 2007, expiring 19 July 2011) and a balance of term of two years and six months (expiring 19 January 2014).
Key Takeaways
- Manslaughter involving the death of a defenceless infant in the offender's care will generally be treated as mid-range or above in objective seriousness, even where there was no intent to kill or injure.
- Attempting to solicit a false confession from a fellow inmate during the early days of custody constitutes a serious attempt to pervert the course of justice, warranting a separate custodial sentence imposed cumulatively on the principal offence.
- A two-year delay in confessing, during which the offender gave inconsistent and false accounts across multiple police interviews, operated as a significant aggravating feature against which the ultimate guilty plea and remorse had to be weighed.
- Special circumstances justifying departure from the standard non-parole to balance-of-term ratio may arise where sentences are accumulated, where the offender is particularly vulnerable in custody, and where significant post-release supervision and support will be required.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, personal hardship in custody, including time spent on protection, is a factor a sentencing court may weigh alongside an offender's background and personal circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 319 (doing an act with intent to pervert the course of justice)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- R v Hoerler [2004] NSWCCA 184