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Supreme Court 19 April 2013

R v Forrest

[2013] NSWSC 377

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT CHILD VICTIM

Citation: R v Forrest [2013] NSWSC 377
Court: Supreme Court of New South Wales
Date: 19 April 2013
Judge(s): Fullerton J

Background

The offender was a 22-year-old man who had been in a de facto relationship with the mother of a four-year-old boy since late 2010. On the night of 1 April 2011, while under the influence of methamphetamine and in an agitated state, he took the child to the bathroom and repeatedly struck him about the head. The child lost consciousness and died later that night at Warren Hospital.

The offender initially gave police a false account, claiming the child had slipped and fallen in the bath. He also pressured the child's mother to repeat that false account to police, which she did until early May 2011 when she provided a statement implicating him.

The offender was originally charged with murder. On 11 March 2013, approximately one week before his scheduled trial date, he pleaded guilty to manslaughter on the basis that the assault was unlawful and dangerous and caused the child's death. The Crown accepted this plea after conceding that evidence would not establish, beyond reasonable doubt, that the offender had intended to kill or cause really serious injury to the child.

  • What sentence was appropriate for the manslaughter of a young child by a person in a position of trust and authority?
  • What discount, if any, should be applied to reflect the late guilty plea?
  • How should the offender's subjective circumstances, including age, drug use, criminal history, and rehabilitative prospects, be weighed against the objective seriousness of the offence?
  • What weight should be given to victim impact statements in determining sentence?

Decision

Fullerton J characterised the offence as falling towards the upper end of the range for manslaughter, given the vulnerability of the victim, the offender's position of trust as a de facto carer, his prior history of violence towards the mother, and the deliberate concealment of guilt through repeated lies to hospital staff and police. The court noted that prior concerns about the child's welfare had been raised with authorities but no protective action had been taken.

The guilty plea was treated as a late plea warranting only a 10 per cent discount. Her Honour found the plea reflected an acceptance of what a jury would inevitably have found rather than genuine remorse or willingness to assist the justice system. The plea did, however, retain some residual utilitarian value by avoiding a trial.

The court surveyed comparable manslaughter cases involving fatal assaults on children, including R v Shepherd, R v Compton, R v Clare, and others. Her Honour observed that in most comparable cases the violence was greater and more prolonged, and that medical attention had been delayed or withheld. Those distinctions did not, in the court's assessment, significantly reduce the objective gravity of this offending.

Subjective factors, including the offender's relative youth and some rehabilitative prospects, were given limited weight. The court also noted that his drug use and prior conviction for violence did not operate as mitigating factors.

Orders Made

  • The offender was convicted of the manslaughter of the child.
  • Sentenced to imprisonment for 8 years, commencing 7 May 2011.
  • Non-parole period of 6 years, expiring 6 May 2017.
  • Balance of term of 2 years, expiring 6 May 2019.
  • The non-publication order previously made under the Children (Criminal Proceedings) Act 1987 was lifted, with the parents' consent.

Key Takeaways

  • A guilty plea entered approximately one week before the scheduled trial date, after committal and after a not guilty plea had been entered at arraignment, attracted only a 10 per cent sentencing discount rather than the larger discount available for early pleas.
  • Where a manslaughter offender occupies a position of trust and authority over a young child victim, that circumstance significantly elevates the objective seriousness of the offence for sentencing purposes.
  • Deliberate concealment of guilt through false accounts to hospital staff and police, including pressure on a co-habitant to repeat those falsehoods, was treated as an aggravating feature of the offending.
  • Prior welfare concerns about the child that were reported to authorities but not acted upon formed part of the factual background considered by the court, even where those prior incidents could not be proved to the criminal standard.
  • Under the Crimes (Sentencing Procedure) Act 1999, victim impact statements were taken into account in the manner permitted by law, though the court confirmed that the severity of a sentence cannot be calibrated to compensate a family for their loss.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- MAH v R [2006] NSWCCA 226
- R v Bilton [2000] NSWSC 1113
- R v Clare [2006] NSWSC 812
- R v Compton [2008] NSWSC 204
- R v Ditfort (Court of Criminal Appeal, 17 March 1992, unreported)
- R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
- R v Recalde [2000] NSWSC 1247
- R v Shepherd [2010] NSWSC 154
- R v Webb [2002] NSWSC 618