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Supreme Court 19 April 2007

R v Mundene

[2007] NSWSC 355

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER DEATH OF BABY BY SHAKING.

Citation: R v Mundene [2007] NSWSC 355
Court: Supreme Court of New South Wales
Date: 19 April 2007
Judge(s): Howie J

Background

The offender, a young Aboriginal man in his early twenties, was charged with the murder of a seven-month-old infant. The child was the son of the offender's partner, though the offender had treated him as his own throughout the relationship. On the morning of 5 July 2005, after a disturbed night during which the infant cried repeatedly, the offender shook the child violently for approximately thirty seconds while the mother watched. The child suffered massive brain swelling and multiple fractures consistent with a shake/impact injury and died in hospital the following day.

The offender pleaded not guilty to murder but guilty to manslaughter on the basis of an unlawful and dangerous act. The Crown accepted that plea in full satisfaction of the indictment, having concluded it could not establish reckless indifference to human life to the standard required for murder. The Crown acknowledged the offender may not have fully turned his mind to the consequences of his actions, despite having been warned about the dangers of shaking a baby both before and during the incident.

At the time of the offence the offender was on parole for break, enter and steal offences and was using cannabis and heroin in breach of his parole conditions. He had been in continuous custody since 15 July 2005, including a nine-month sentence imposed for a separate offence committed while in custody.

  • What was the appropriate head sentence and non-parole period for manslaughter by infant shaking?
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the balance of term.
  • What commencement date should apply to the sentence, given the offender was serving the balance of a revoked parole and a subsequent custodial sentence?
  • How to apply the principle of totality across the offender's overlapping periods of custody.

Decision

Howie J sentenced the offender to a total term of six years and nine months, comprising a non-parole period of three years and nine months and a balance of term of three years. His Honour found special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999, noting the offender's youth, his troubled background, his long period of continuous custody, and the significant rehabilitation and supervision he would require on release. The extended balance of term reflected the need for structured parole supervision to address the offender's entrenched drug use and social disadvantage.

In assessing the objective seriousness of the offence, the court treated the conduct as serious but not at the highest end of the range for manslaughter. The offender had been warned about the dangers of shaking the infant, both by the mother in the days before and again during the act itself, which bore on culpability. However, the Crown's concession that the offender may not have fully appreciated the import of those warnings was accepted and factored into the basis of the plea.

On commencement date, the court applied the principle from Callaghan v R, which confirmed a sentencing court's discretion to backdate a sentence where the offender is serving the balance of parole. Howie J backdated the sentence to 15 October 2006, rather than the date of arraignment, to give proper effect to totality. The effect of the overall sentence was that the offender would serve five years in custody before becoming eligible for parole.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to imprisonment with a non-parole period of 3 years and 9 months, commencing 15 October 2006 and expiring 14 July 2010.
  • Balance of term of 3 years, commencing 15 July 2010 and expiring 14 July 2013.
  • Earliest eligibility for release to parole: 14 July 2010.

Key Takeaways

  • A sentencing court retains a discretion to backdate a sentence to a date before arraignment where the offender is serving the balance of revoked parole, and the principle of totality may justify doing so: Callaghan v R [2006] 160 A Crim R 145.
  • Special circumstances warranting an extended balance of term can arise from a combination of youth, an impoverished personal background, entrenched drug dependency, and a lengthy period of pre-sentence custody.
  • The Crown's acceptance of a manslaughter plea, on the basis that reckless indifference to human life could not be established, directly shaped the sentencing findings as to the offender's state of mind, even where warnings had been given.
  • Sentences imposed for manslaughter of young children provide a general guide to consistency, but Howie J noted each such sentence represents a discretionary judgment on its own facts and that statistical data is of limited utility in this relatively rare category of offending.
  • The court noted that most offenders sentenced for this type of offence are placed on protection in custody, a practical consideration implicitly acknowledged in the sentencing context.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(j)

Cases:
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- R v Monroe [2003] NSWSC 1271; 148 A Crim R 478
- R v Hoerler [2004] NSWCCA 184