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Supreme Court 7 December 2022

R v Smith

[2022] NSWSC 1651

Homicide
CRIME S ENTENCE AFTER TRIAL DEATH OF 6 MONTH OLD BABY

Citation: R v Smith [2022] NSWSC 1651
Court: Supreme Court of New South Wales
Date: 7 December 2022
Judge(s): Wilson J

Background

A six-month-old boy, Rylan Bull, was taken by ambulance to John Hunter Hospital in the early hours of 9 February 2019 with severe head injuries. He died later that day. The offender, Jie Smith, had assumed sole care of Rylan during the two to three hours before the ambulance was called.

Smith was tried before a jury on a charge of murder. The jury returned a verdict of not guilty of murder but guilty of the statutory alternative of manslaughter. The sentencing proceedings followed that verdict.

Two witnesses had direct knowledge of the relevant events: Smith and the baby's mother, Kirsty Ruyter. Both had lied extensively to police, and the court found that both almost certainly also lied in their evidence at trial.

  • What was the factual basis for the manslaughter conviction, given the jury's verdict and the conflicting and unreliable evidence?
  • Was the manslaughter established on the basis of an unlawful and dangerous act, or on the basis of gross criminal negligence?
  • What sentence was appropriate having regard to the objective gravity of the offence and the offender's subjective circumstances?

Decision

Wilson J could not establish, to the required standard of proof, that Smith had deliberately struck or shaken Rylan. To reach that conclusion would have required accepting Ruyter's evidence that the baby was largely uninjured when she left him with Smith. Her evidence was riddled with inconsistencies and prior lies to police, and the court could not accept it beyond reasonable doubt.

Smith's own account, in which he claimed to have witnessed Ruyter deliver four blows and four shakes to the baby, was similarly rejected. That account emerged only four months after the events, after Smith had been charged with murder. The court assessed it as a construction tailored to meet the Crown case. His claim that the baby's knee bruises were caused by playful tickling, directly contradicted by expert and common-sense evidence, illustrated the unreliability of his evidence more broadly.

The court was therefore left unable to determine who inflicted the fatal injuries or to apportion blame for them. What could be established was a different and sufficient basis for manslaughter: Smith, having assumed sole care of Rylan and knowing the baby was seriously injured, failed to obtain medical assistance for an extended period of up to two hours. That failure accelerated Rylan's death. The court found this omission was motivated at least in part by Smith's desire to avoid police attention. This formed the basis of liability: gross criminal negligence arising from a failure to fulfil a legal duty of care owed to a child in his sole custody.

Wilson J assessed the offence as serious within the range of manslaughter, noting that Smith was the only person who could have summoned help, that he had removed the baby from the observation of others, and that his inaction persisted for an extended period despite obvious signs of critical injury.

Orders Made

  • Smith was convicted of the manslaughter of Rylan Bull on 9 February 2019 at New Lambton.
  • Sentenced to imprisonment for 4 years and 9 months, commencing 13 August 2019 and expiring 12 May 2024.
  • Non-parole period of 3 years and 6 months, expiring 12 February 2023.
  • A finding of special circumstances was made for the limited purpose of adjusting the non-parole period to avoid a sentence expressed in days.

Key Takeaways

  • A manslaughter conviction can rest on gross criminal negligence arising from a failure to act, where the offender had a legal duty of care and that omission accelerated the victim's death, even where the cause of the underlying injuries cannot be established against the offender beyond reasonable doubt.
  • Where both the accused and a key prosecution witness have lied comprehensively to police and given unreliable trial evidence, a sentencing court may be unable to find the precise factual circumstances of a death to the relevant standards of proof, yet still sentence on an established and distinct basis of liability.
  • Consistent with R v Isaacs (1997) 41 NSWLR 374, facts adverse to an offender at sentence must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities.
  • Assuming sole care of a vulnerable infant creates a legal duty to act, and a prolonged failure to summon medical assistance in the face of obvious critical injury will be treated as a seriously aggravating feature of a manslaughter by omission.
  • The court acknowledged openly that the sentence could not vindicate the child's death or punish whoever inflicted the fatal injuries, but that it must nonetheless reflect the purposes of punishment, denunciation, and accountability for the proven criminal omission.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b) (manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)
- Evidence Act 1995 (NSW)

Cases
- R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587
- PTC v R [2011] NSWCCA 51
- R v BW and SW (No 3) [2009] NSWSC 1043
- R v Eriksson [2001] NSWSC 781
- R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247
- R v HA [2008] NSWSC 1368
- R v KJ [2015] NSWSC 767
- R v Wilkinson [1999] NSWCCA 248
- SAM, Thomas v R; SAM, Manju v R (2011) 206 A Crim R 67; [2011] NSWCCA 36