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Supreme Court 9 November 2018

R v ES (No 2)

[2018] NSWSC 1708

Assault & violenceHomicide
CRIME SENTENCE DEATH OF BABY CAUSED BY SHAKING

Citation: R v ES (No 2) [2018] NSWSC 1708
Court: Supreme Court of New South Wales
Date: 9 November 2018
Judge: McCallum J

Background

The offender, identified only as ES, pleaded guilty to the manslaughter of his infant daughter, Liana, who was approximately three months old at the time of her death. The killing occurred on 13 November 2015 when ES shook the baby while attempting to settle her. Liana suffered brain and cervical spine injuries consistent with shaking and died four days later after life support was withdrawn.

Medical examination also revealed old and healing rib fractures and bruising of differing ages across Liana's body. ES admitted to having inflicted some of those bruises prior to the fatal incident. He also asked the Court to take into account, as a related matter under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 32, a separate offence of assault occasioning actual bodily harm against Liana.

ES did not give evidence at the sentencing proceedings. His personal circumstances were placed before the Court through reports from a forensic psychiatrist and a clinical psychologist, both of which drew heavily on the history the offender had provided to those experts.

  • What weight should the sentencing court give to psychiatric and psychological reports where the offender did not give evidence and the history recorded in those reports was not tested by cross-examination?
  • What findings could be made about the objective seriousness of the offence and the offender's subjective circumstances, including his traumatic background, mental health, and remorse?
  • Whether the possibility that ES may be deported following release was a relevant consideration in fixing the sentence.
  • What sentence was appropriate for manslaughter in these circumstances, having regard to comparable cases and all relevant statutory considerations?

Decision

Weight of expert reports and untested hearsay

The Crown urged caution in relying on the expert reports, citing the principle drawn from cases such as R v Qutami that courts should treat with "very considerable caution" hearsay statements made by offenders to mental health professionals when those offenders do not give evidence. McCallum J accepted that caution is appropriate but declined to elevate that caution into a rule requiring rejection of such material. Her Honour found that neither expert had been requested for cross-examination, that the histories recorded in both reports were coherent, largely consistent, and not inherently implausible, and that the reports were prepared by experienced professionals accustomed to taking careful patient histories. On that basis, the Court was satisfied the premises of the expert opinions could largely be accepted.

Objective seriousness and subjective circumstances

Her Honour found the offence to be of considerable objective seriousness. A three-month-old infant was shaken with sufficient force to cause fatal brain and spinal injuries, and the existence of prior injuries demonstrated this was not an isolated incident. In terms of subjective circumstances, the Court accepted that ES had endured a profoundly difficult life, including the early death of his father, street homelessness, custodial violence, sexual assault by a police officer, substance dependence, conversion to Christianity, persecution and torture in Iran, and subsequent refugee status in Australia. These matters were accepted as relevant to his background and moral culpability, though they did not displace the seriousness of the offending.

Deportation

The Court addressed the submission that the prospect of deportation should be treated as a mitigating factor or otherwise affect the sentence. Her Honour's treatment of this issue, as reflected in the judgment, formed part of the broader sentencing discretion rather than constituting a separate holding on novel legal principle.

Sentence

Taking all matters into account, including the victim impact statement from Liana's mother, the offender's time in custody since 14 November 2015, his guilty plea, and comparable decisions, McCallum J imposed a total term of 8 years with a non-parole period of 5 years. Her Honour expressly rejected the submission that a non-parole period reflecting only the time already served (approximately 3 years) would adequately reflect the seriousness of the offence.

Orders Made

  • ES convicted of the manslaughter of Liana.
  • Sentenced to imprisonment comprising a non-parole period of 5 years commencing 14 November 2015 and expiring 13 November 2020, and a balance of term of 3 years expiring 13 November 2023.
  • First eligible date for release to parole: 13 November 2020.
  • The related offence of assault occasioning actual bodily harm was taken into account on sentencing under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Key Takeaways

  • The principle from Qutami requiring caution about untested hearsay in offender histories does not operate as a rule of exclusion. Where expert reports are coherent, internally consistent, and prepared by experienced practitioners who were not cross-examined, a sentencing court may accept the premises of those reports as largely established.
  • Elevating the "very considerable caution" formulation from Qutami into a near-mandatory rejection of such evidence was expressly declined by the Supreme Court in this decision.
  • Profound personal hardship and trauma in an offender's background, including persecution, torture, and mental illness, are relevant to subjective circumstances and moral culpability but do not displace the objective gravity of offending that causes the death of a vulnerable infant.
  • A non-parole period of approximately 3 years was found to be manifestly inadequate for manslaughter involving the fatal shaking of a three-month-old where prior injuries to the child were also established.
  • Victim impact statements demonstrating the devastating effect of an infant's death on a surviving parent are a proper consideration in assessing the harm done to the community by the offence under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 24, 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), 21A(3)(i), 28(4), 32
- Children's (Criminal Proceedings) Act 1987 (NSW), s 15E

Cases
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- Alvares v R; Farache v R [2011] NSWCCA 33
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- R v Hooper [2004] NSWCCA 10
- Woodgate v R [2009] NSWCCA 137
- Butters v R [2010] NSWCCA 1
- Imbornone v R [2017] NSWCCA 144
- R v BT [2017] NSWSC 1600
- R v Blacklidge (Unreported, 12 December 1995, NSWCCA)
- R v Halloun [2014] NSWSC 1705
- R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377
- R v Dawes [2004] NSWCCA 363
- R v Shepherd [2010] NSWSC 154
- Kristensen v R [2018] NSWCCA 189
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518