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District Court 3 July 2009

R v GJL

[2009] NSWDC 167

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER DEATH OF 9 WEEK OLD BABY BABY SHAKING SINGLE INCIDENT

Citation: R v GJL [2009] NSWDC 167
Court: District Court of New South Wales
Date: 3 July 2009
Judge(s): Knox SC DCJ

Background

The offender, a 26-year-old mother, pleaded guilty to the manslaughter of her nine-week-old son, ML, who died on 7 February 2007. The agreed facts established that the offender had shaken the infant violently on or around 3 February 2007, in a state of extreme anger and while under the influence of methylamphetamine. A neighbour who witnessed the shaking described it as occurring with considerable force and in a corkscrew motion, with the offender screaming at the baby.

ML was admitted to hospital on 5 February 2007 in a non-responsive state and died two days later. Medical experts agreed his death resulted from a severe shaking episode, causing subdural haematomas, cerebral haemorrhages, acute brain oedema, and extensive retinal haemorrhages. There were no skeletal fractures or external injuries, and no underlying medical condition.

The offender had a documented history of drug use and had told a midwife weeks earlier that she was not coping and not bonding with her son. She made no admissions to police about harming ML and was aggressive during initial questioning. Her guilty plea was ultimately entered on 16 February 2009.

  • What sentence was appropriate for manslaughter of an infant in circumstances involving drug use, a single shaking incident, and a guilty plea?
  • What discount, if any, should apply to the sentence in recognition of the guilty plea and remorse?
  • Whether special circumstances existed justifying a departure from the statutory two-thirds ratio between the non-parole period and the head sentence?
  • Whether a sentence other than full-time custody was open given the circumstances of the offence and the requirements of general and personal deterrence?

Decision

The court found that the offence, while constituted by a single incident, was objectively serious. The violent shaking of a nine-week-old infant by a person in a highly agitated and drug-affected state, combined with the failure to promptly seek medical attention and the misleading of hospital staff, were significant aggravating factors.

The court acknowledged a number of mitigating factors, including the offender's guilty plea, her lack of prior criminal convictions, her youth, and evidence of genuine remorse. The offender had experienced significant personal hardships, including a history of sexual assault and substance abuse, and had commenced drug treatment and psychological counselling. These matters were assessed alongside the requirement for both general and personal deterrence.

A 20 percent discount was applied to reflect the guilty plea and the remorse inherent in it, reducing a notional starting point of seven and a half years to a head sentence of six years. The court found special circumstances warranted adjusting the statutory ratio, given the offender's need for close supervision, ongoing drug treatment, and psychological support during the additional term. This resulted in a non-parole period of four years rather than the standard two-thirds of the head sentence.

Despite the offender's relatively young age and clean criminal record, the court concluded that only a sentence of full-time custody would adequately reflect the gravity of the offence and the demands of general and personal deterrence.

Orders Made

  • The offender was convicted on the count of manslaughter to which she pleaded guilty.
  • Sentenced to imprisonment with a non-parole period of four years, commencing 3 July 2009 and expiring 2 July 2013.
  • An additional term of two years to commence on expiry of the non-parole period and expire 2 July 2015.
  • Parole conditions recommended, including: notification of address, relationships, and treating practitioners to Probation and Parole; compliance with random urine and drug testing; notification of any pregnancy; and participation in ongoing psychological and psychiatric counselling.
  • A copy of the sentencing remarks to be forwarded to the Newcastle offices of the Probation and Parole Service and the Department of Community Services.

Key Takeaways

  • The District Court confirmed that a single incident of fatal infant shaking, committed in a state of drug-induced anger, can constitute a seriously objectively grave instance of manslaughter warranting full-time custody even for a first-time offender.
  • A 20 percent sentencing discount was applied for a guilty plea entered approximately two years after the offence, reflecting both the utilitarian value of the plea and remorse accepted as genuine by the court.
  • Special circumstances were found to exist where the offender required an extended period of supervised parole for intensive drug treatment and psychiatric support, justifying a departure from the standard two-thirds non-parole ratio.
  • The failure to seek timely medical attention for a critically injured infant, and the provision of misleading information to hospital staff, were treated as aggravating features in the sentencing exercise.
  • Personal hardship, including a history of trauma and substance dependency, was weighed in mitigation but did not displace the court's view that the requirements of general and personal deterrence demanded full-time imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Borkowski [2009] NSWCCA 102
- R v Hoerler [2004] NSWCCA 184
- R v Howard [2000] NSWSC 876
- R v Woodland [2001] NSWSC 416
- R v Vaughan (1991) 56 A Crim R 355
- R v Grierson (NSWCCA, 28 October 1996)
- R v Wilkinson (NSWCCA, 9 August 1999)
- R v O'Brien [2003] NSWCCA 121
- R v Wilson (2005) 62 NSWLR 346
- R v Mundene [2007] NSWSC 355
- R v Monroe [2003] NSWSC 1271