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Supreme Court 3 March 2023

R v Rudolph

[2023] NSWSC 181

Homicide
SENTENCING — MANSLAUGHTER WEEK OLD VICTIM ACCIDENTAL SHAKING REDUCED MORAL CULPABILITY NO FINDING OF REMORSE

Citation: R v Rudolph [2023] NSWSC 181
Court: Supreme Court of New South Wales
Date: 3 March 2023
Judge(s): R A Hulme AJ

Background

The offender was charged with the murder of a 13-week-old infant, Jasmine Wilkes, who died on 4 August 2020 at a unit in Hamilton South, Newcastle. The infant had been left in the care of the offender, her aunt's partner, while her mother stepped out in the early hours of the morning. The offender remained awake throughout the night while others in the unit slept.

Medical evidence established that the infant died from non-accidental head and neck trauma caused by vigorous shaking. Forensic pathology confirmed that moderate to severe force had been applied to the infant's unsupported head, causing violent backward-forward motion. The infant would have appeared highly abnormal and unwell almost immediately after the injury was inflicted.

The offender was originally committed for trial on murder but pleaded guilty to manslaughter on 31 October 2022, a plea the Crown accepted. The sentencing proceedings required the court to assess the objective seriousness of the offence and weigh a range of subjective factors, including the offender's background and personal circumstances.

  • What was the appropriate sentence for manslaughter involving the fatal shaking of a 13-week-old infant?
  • What weight should be given to the offender's deprived and dysfunctional childhood as a mitigating factor reducing moral culpability?
  • Whether being tired, stressed, and exhausted at the time of the offence constituted a mitigating circumstance?
  • Whether remorse was established on the evidence?
  • What discount was appropriate for the early plea of guilty?
  • Whether special circumstances existed warranting a variation to the standard parole ratio?

Decision

Hulme AJ treated the offence as one of significant objective seriousness. The fatal injury was caused by intentional, vigorous shaking of a defenceless 13-week-old infant. The court accepted that the offender would have been well aware, while the act was occurring, that the infant was at serious risk of harm: medical evidence described the infant's excessive head and limb movement as highly visible to any perpetrator.

On subjective factors, the court accepted evidence of a profoundly deprived and dysfunctional childhood, which was treated as reducing the offender's moral culpability to a meaningful degree. However, the court rejected the submission that being tired, stressed, or exhausted at the time of the offence operated as a mitigating factor. The court also declined to make a finding of remorse, noting the evidence did not reliably establish it.

The court acknowledged the offender's potential for rehabilitation, his history of trauma and drug addiction, and the availability of ongoing treatment, all of which bore on the sentencing assessment. His lack of prior relevant criminal history was also noted.

A 10% reduction was applied for the guilty plea. The court declined to find special circumstances, concluding that the standard parole period would be sufficient to assist the offender's reintegration and continued treatment, while keeping the non-parole period proportionate to the gravity of the offence.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to a total term of 8 years imprisonment, comprising a non-parole period of 6 years and a balance of term of 2 years.
  • Sentence backdated to commence 16 December 2020.
  • The offender becomes eligible for release on parole on 15 December 2026.
  • Without the guilty plea, the sentence would have been 9 years.
  • The offender's solicitor was directed to advise the offender of the existence and potential application of the Crimes (High Risk Offenders) Act 2006 (NSW).

Key Takeaways

  • Manslaughter carries no fixed sentencing range because it can be committed in so many different ways; the court must focus on the unique facts of each case, guided by the 25-year maximum and the fundamental principle that all homicides involve an attack on the sanctity of human life.
  • A deprived and dysfunctional childhood can reduce an offender's moral culpability and operate as a mitigating factor in sentencing, even for offences of significant objective seriousness.
  • Being tired, stressed, or exhausted at the time of a fatal offence does not, of itself, constitute a mitigating circumstance, and the court here expressly declined to treat it as one.
  • Remorse requires reliable evidence before a court will give it mitigating weight; an absence of such evidence means no finding of remorse will be made, even where the offender has pleaded guilty.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is required to ensure that an offender is advised of the existence of that Act and its potential application to them.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A and 30E
- Children (Criminal Proceedings) Act 1987 (NSW), s 15E
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520
- R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
- Aslan v R [2014] NSWCCA 114
- R v Shepherd [2010] NSWSC 154