Dec 11, 2017 - or by family and friends. However, neighbours reported your frequently screaming at him, and one witness
SUPREME COURT OF QUEENSLAND
1
CITATION:
R v Strbak [2017] QSC 317
PARTIES:
R (prosecution) v HEIDI STRBAK (defendant)
FILE NO:
1643 of 2016
DIVISION:
Trial Division
PROCEEDING:
Sentence
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
18 December 2017 ex tempore (issued subject to revision against transcript)
DELIVERED AT:
Brisbane
HEARING DATE:
18 December 2017
JUDGE:
Applegarth J
COUNSEL:
P J McCarthy for the prosecution G M McGuire for the defendant
SOLICITORS:
Office of the Director of Public Prosecutions (Queensland) for the prosecution Bamberry Lawyers for the defendant
[1]
Heidi Strbak, you are to be sentenced for the unlawful killing of your son, Tyrell Cobb on 24 May 2009. He died as a result of abdominal injuries sustained that weekend. The factual circumstances surrounding his death, including the failure by you and your coaccused Matthew Scown, to seek medical treatment have been stated in my reasons published on 11 December 2017, which are publicly available.1 They need not be restated again at length.
[2]
Tyrell was aged four years and three months at the time of his death. You appeared to be a good mother, both during his early years and during the final six months of his life. You separated from his father in November 2008, and brought him to live with you at the Gold Coast. He was well presented at pre-school, and always had a good lunch packed by you. He was not neglected or bruised when he was seen at school, at hospital or by family and friends. However, neighbours reported your frequently screaming at him, and one witness heard slapping.
R v Strbak [2017] QSC 299: https://www.sclqld.org.au/caselaw/QSC/2017/299.
1
[3]
Not all was well in your life. You were in occasional conflict with your ex-partner, and that conflict spilled over into abusive messages between your ex-partner and your new partner, Matthew Scown, who thought that Jason Cobb was interfering too much in your life. Conflicts of that kind are unfortunately a feature of relationships breaking down and new ones forming.
[4]
In the few weeks before his death Tyrell had a fall from a fort or slide at pre-school, and his arm was placed in a cast. He jammed his finger in a large wooden toy box, and the infected finger needed intravenous treatment in hospital. On Saturday, 23 May 2009 he fell over whilst running up some stairs, but was not badly injured.
[5]
Those series of events, and the absence of cannabis to steady your anxiety, took its toll. It is probable that you punched him in the stomach out of frustration some time on Saturday, and this caused the onset of chemical peritonitis, and with it vomiting.
[6]
In his evidence, your ex-partner Jason Cobb did not accuse you of being a bad mother. He never saw you act violently towards Tyrell during the years you lived together or during his occasional visits to the Gold Coast in late 2008 and early 2009. Matthew Scown, who may have had an interest after he was charged in portraying you as a violent person, did not accuse you of being a bad mother, save for when you did not have access to cannabis to pacify you. When you did not have cannabis to use, your behaviour was frantic and you became argumentative. Still, the only three acts of violence that he witnessed were slapping to Tyrell’s legs in a car, a frogmarching incident and a slap to Tyrell’s face that Saturday night, when you were frustrated. That is not to say that you did not slap him on other occasions when others were not present and when you were frustrated. It does, however, distinguish your case from other child manslaughter cases where there has been prolonged neglect and violence. I cite by way of comparison R v Matthew Lee Williamson, Supreme Court of Queensland, Atkinson J, 6 April 2017.
[7]
Tyrell slipped and injured at least his head in the shower on the Saturday night, when you were out trying to obtain a cannabis. That fall cannot account for all of the bruises to his head or body, and did not cause his fatal injuries.
[8]
The fact that you were not coping with Tyrell and that you had injured him on the Saturday is evidenced by your surprise request to Jason Cobb that weekend to come and get his son. You were in your room alone with Tyrell throughout that Saturday night, and were at different times with him on the Sunday, including at a time on the Sunday afternoon when at 3 pm when a neighbour heard Tyrell scream and then a sudden silence. It is probable that you punched him a second time in the stomach some time on the Sunday, not knowing or intending to cause his death or to permanently injure him. But such a blow aggravated his existing abdominal injuries, and proved fatal.
[9]
Throughout the Sunday he was in a dire condition: vomiting many times, unable to keep water, let alone food, down. His condition late on Sunday must have been far worse than you led your mother to believe. He was also carrying bruises, both accidental and nonaccidental.
[10]
You did not do what any good mother, or what any reasonable person, would have done in the circumstances: seek medical treatment. Scown was complicit in not obtaining medical treatment. He spent nearly three years in jail awaiting sentencing, and has been sentenced for his criminal neglect. But you were Tyrell’s mother, with the primary duty 2
for his care. You knew that if Tyrell was taken to hospital and the source of his injuries was investigated you would be held responsible for his neglect. So he did not receive treatment, and the neglect proved fatal. [11]
You made a terrible error of judgment in not seeking treatment for this very sick little boy. In retrospect, if you had taken him for emergency treatment you might have been investigated and possibly charged. But he would be alive, and you would not have been convicted of manslaughter.
[12]
The advancing peritonitis (caused by leakage of his stomach contents) and internal bleeding led to his decline, the onset of shock and death on the Sunday night. The last hours of his life must have been miserable and painful.
Your circumstances [13]
You were born in early 1983, so you were 26 of that date of the offence. You are now aged 34. You were raised by your father after your biological parents separated when you were three. Your father was awarded full custody and his new partner became your mother for all intents and purposes. You have had a close relationship with her, and with your father. Your education was disturbed by a number of changes of school. You impressed your teachers as reliable and hard working.
[14]
After leaving school you obtained work in retail and then qualifications and work in the hospitality industry. I have regard to the references which describe you as a hard working, responsible person.
[15]
You met Jason Cobb when you were 21, and two years later Tyrell was born. You appeared very protective of him. Mr Cobb said sometimes you were overprotective. You enjoyed being a mother, loved your child and got on well with others, including the people with whom you worked long hours to provide for him. You incurred large medical bills getting treatment and private surgery on the Gold Coast for Tyrell’s tonsillitis.
[16]
I need not dwell on the reasons for your separation from Jason Cobb. There are usually two sides to every relationship breakdown. It is sufficient to say that differences between you and Jason Cobb prompted you to leave the relationship, your job and the outback New South Wales town in which you had friends and family.
[17]
You came to the Gold Coast, and spent a lot of time with your step brother Danial, and later with his friend Matthew Scown. You remained a recreational cannabis user.
[18]
The course of events, including your frustration with Tyrell on the weekend of 23 and 24 May 2009, have been detailed by me in writing, and need not be repeated here.
Subsequent events [19]
After his death you were not honest with the police about the nature and extent of his injuries, or their causes. You were prepared to lie to the CCC.
[20]
Eventually, after the investigation was re-opened in 2015, and you were charged, you spent 34 days in custody between 13 August and 16 September 2015, and you have spent 3
a further 32 days between 16 November and 18 December 2017 in custody. I declare those 66 days as time already served under the sentence I will impose. [21]
On 4 November 2016 you and Scown were committed to stand trial for manslaughter.
[22]
An indictment was presented on 16 December 2016. On 24 March 2017, the matter was listed for trial.
[23]
On 11 October 2017 Scown pleaded guilty to manslaughter and was sentenced on the basis that he omitted to obtain medical assistance for Tyrell on 24 May 2009, when he observed Tyrell to be obviously and severely unwell. Scown’s failure to obtain medical assistance made him criminally negligent for Tyrell’s death.
[24]
Your trial was set down to commence on 6 November 2017.
[25]
In late October 2017 you indicated that you were prepared to plead, and on 1 November 2017 you pleaded guilty to manslaughter. The matter proceeded to a contested sentence. I found that the blunt force you applied to Tyrell’s abdominal area on more than one occasion over the weekend caused his death. I also found that you inflicted other nonfatal injuries that weekend. Your conduct was aggravated by failing to seek medical treatment for him.
Impact on victims [26]
Tyrell is not the only victim in this case. Jason Cobb lost his only son. He became isolated and gave up his work. He suffers from depression. He has been devastated, and despite support from his family, remains sad and angry. He has not been able to get on with his life, and not been able to consider having another child.
[27]
Tyrell was an Australian of indigenous heritage, and his extended indigenous family, including his grandmother and aunties have felt his loss. They are sad and depressed.
[28]
Your parents also lost a grandchild, with the grief associated with the circumstances of his death.
Rehabilitation and remorse [29]
Whilst you were principally responsible for his death, this does not alter the fact that you suffered from grief and depression which had to be treated. You slowly recovered and improved your general health, and completed the medical and psychological assessments for entry into the Army in 2013. You performed clerical duties in the Army for four years.
[30]
You formed a new relationship, and had a son who is aged three. You were engaged to be married, but the relationship broke down at about the time you were jointly charged with murder. The father of your young son has custody of him.
[31]
With the stress of these proceedings you presented as severely stressed, anxious and depressed when you were assessed by a psychologist, Mr Holt, on 4 November 2017. You had symptoms consistent with severe post-traumatic stress and major depression.
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[32]
I take account of the fact that you had no criminal history prior to this offence, and in the eight and a half years since then, you have not committed further offences. You have rehabilitated yourself into a working mother, and any sentence must ensure that your rehabilitation is not unnecessarily jeopardized.
[33]
Your incarceration, part of which may be spent in protective custody, will not be easy.
Plea [34]
I take account of your guilty plea in sentencing you. The plea was one entered close to trial, and so does not have the same weight as an early plea. Also, it was a plea on a more limited basis than the basis upon which you were found to have committed the offence to which you pleaded.
[35]
Nevertheless, such a plea has facilitated the course of justice, and avoided a jury trial. Many witnesses were still required for the contested sentence hearing, but, because of your plea, there was the certainty that you would be held responsible for the killing on one basis or another.
[36]
The plea was consistent with remorse for not having sought medical treatment for your son, which, if it had been obtained, could have saved him.
Principles [37]
I apply the principles stated in the Penalties and Sentences Act 1992 (Qld), which include the need to protect vulnerable individuals, like children who cannot defend themselves, from the risk of physical harm.
[38]
Frustration and despair are not unusual amongst parents and carers of young children. The law must, however, attempt to deter those who care for children, from allowing their frustration from manifesting itself in violence of any kind, whether that be violently shaking a baby or punching a child. The Court also must denounce such conduct.
Comparable cases [39]
The circumstances in which a child is unlawfully killed, and the culpability of offenders, vary widely. More generally, the offence of manslaughter covers a wide range of offending. As Chief Justice Kiefel and Justice Nettle observed in Pickering v The Queen:2 “[M]anslaughter is an offence that may be committed in an infinite variety of circumstances, ranging from what for all intents and purposes is tantamount to murder down to something which, when viewed objectively, is no more heinous than a moment’s inattention to a task at hand. For that reason, it is notorious that manslaughter attracts a wider range of sentences than any other crime.” (citations omitted)
2
(2017) 324 ALR 374 at [301].
5
See also in the context of the manslaughter of a child, R v Hoerler.3 [40]
The culpability of offenders in manslaughter cases varies widely. There are cases of intent to kill or do grievous bodily harm, which otherwise would be murder, but which are reduced to manslaughter on the grounds of the partial defence of provocation. Here there was no such intent alleged. As with any case, the extent of violence and the risk of death or serious injury are relevant circumstances. As Chief Justice Spigelman stated in R v Hoerler:4 “The actual physical assault leading to death can range from comparatively minor force to a sustained beating over a prolonged period of time, incorporating elements of gratuitous cruelty. The personal culpability of the offender may vary from a carer who acts out of despair or in circumstances bordering on accident, to the vicious acts of a sadist.”
[41]
To like effect are the observations of the Queensland Court of Appeal in the 1996 case of Ross, in which the Court reviewed a number of sentences imposed for infant manslaughter. It noted that the unlawful killing of a young child arises through circumstances: “from killing in the course of systematic gratuitous abuse, (usually by a de facto), killing because of accumulated frustrations or a single occasion of frustration, to killing by a mother who is mentally disturbed as an aftermath of the birth”.
[42]
A number of cases of manslaughter involving children have been cited to me. However, care is required in not creating distinct subcategories of cases for the purpose of sentencing. Instead, they reflect the application of general principles of sentencing to particular facts.
[43]
Unlike, say, drug trafficking cases, there are not a sufficiently significant number of cases sharing common characteristics, so as to deduce a sentencing pattern or well-defined sentencing range. Every case involves community outrage that the life of a child has been taken, either through neglect or force. There are a wide variety of other circumstances to be discerned from the decided cases.
[44]
To the extent the Court of Appeal may be said to have indicated a range of sentences for cases involving particular circumstances, I am required to sentence accordingly. As Davies JA observed in R v Moss (unreported 8 October 1999 at p 10), there is nothing more likely to lead to inconsistency and consequentially justifiable senses of grievance than different sentencing judges setting different ranges for particular kinds of offences. His Honour said that when the range is to be changed that should be done, as appropriate, by the Court of Appeal, not by individual judges. More generally, equality before the law requires me to consider sentencing practices and decisions in other cases. The same or similar offending should attract a similar sentence. Different offending should be treated differently.
3 4
[2004] NSWCCA 184 at [39] – [44]. [2004] NSWCCA 184 at [43].
6
R v Walsh [1986] QCA 119 [45]
In that case a 24 year old with no previous convictions was sentenced on his plea of guilty to nine years for killing a 16 month old child. Injuries were occasioned to both the head and abdomen of the child. He acted in a state of “uncontrolled frenzy because he was unable to stop the child from crying as he was in the process of taking care of her and bathing her” (p 3). The child’s head struck a bathroom door and there probably was a blow to the abdomen. That case was decided more than 20 years ago, and the court acted on the basis that the range of sentences for manslaughter of that kind varied between perhaps five and 10 years. The nine year sentence was at the top of the upper end of that range. The injuries were inflicted over a relatively short period of time. Whilst at the upper end of the range, the Court of Criminal Appeal said that the sentence was not manifestly excessive.
R v Riseley ex parte Attorney-General (Qld) [2009] QCA 285 [46]
This was a case in which the offender unlawfully killed a 19 month old baby boy, who was the son of the young woman with whom he was living at the time. He pleaded guilty to manslaughter and was sentenced to eight years’ imprisonment. The sentencing judge made a serious violent offence declaration. The child suffered severe brain injury within the 12 to 24 hours prior to his death, and had contusions along his spine, consistent with being held around the chest and shaken repeatedly. He suffered a fractured leg and a fractured rib. The offender was 21 years old at the time of the offence with an irrelevant criminal history. He had a history of substance abuse and had been subject to sexual abuse as a child. The sentencing judge proceeded on the basis that the offender acted out of tiredness and frustration.
[47]
On appeal, the serious violent offence declaration was set aside. Keane JA (with whom McMurdo P and Holmes JA agreed) referred to earlier decisions of the Court of Appeal including Chard and Hall. Those cases were said to suggest that “a sentence of eight years’ imprisonment, even without a serious violent offence declaration is a distinctly heavy sentence for this category of offence once mitigating circumstances such as the plea of guilty and the respondent’s rehabilitation are taken into account”.
[48]
Care is required in identifying what the Court meant by “this category of offence”. It is sufficient to note that the case involved a helpless infant who was brutally assaulted. However, there was no evidence of “prolonged violence” [44]. There was no preplanning or use of a weapon. The respondent acted out of weariness and frustration. Still, his failure to take steps earlier to render medical aid was a circumstance of aggravation, and suggested “a degree of callous disregard for the child”. He was a tired and immature young man who had suffered “serious social disadvantage” and was of less than average intelligence. The respondent in that case was given a parole eligibility date at around at around the three and a half year mark.
R v Chard ex parte Attorney-General (Qld) [2004] QCA 372 [49]
This case also involved the death of an infant who was the son of the offender’s de facto partner. It was not, however, a case of isolated cruelty borne of anger or frustration. There was sustained violence. The Court of Appeal distinguished the case of R v Hall [2002] QCA 125 which involved the death of an infant caused by a single episode of shaking. The sentencing judge had imposed a six year sentence to be served in 7
conjunction with an activated 12 month suspended sentence. Williams JA, with whom other members of the Court of Appeal agreed, stated at [23]: “The prolonged abuse of a baby this age would call for a head sentence at least in the range of eight to 10 years; the offence is far more serious than the isolated incident of shaking in Hall.” [50]
The main discounting factor in that case was a timely plea to manslaughter. When all the relevant factors were taken into consideration, the Court of Appeal considered that the appropriate sentence was one of seven years. I note that sentence was imposed at a time when successful appeals by the Attorney-General tended to result in sentences being imposed at the bottom end of the range. A non-parole period of four years was fixed.
R v Hall [2002] QCA 125 [51]
This was a case of violent shaking of a 19 day old baby. This caused severe brain damage, but the child survived for 10 months. The offender was aged 40 and had a significant and relevant criminal history. It was an Attorney-General’s appeal and the sentence of four years was increased on appeal to six years. The Court observed that: “Given the circumstances of the offence and the respondent’s criminal history a head sentence in the range of eight to nine years would ordinarily be called for”. [17]
[52]
Your case is more serious than an immature individual, such as the de facto partner of a child’s parent, who in a single episode violently shakes a baby, causing its death, as terrible as those cases are. It involved at least two forceful blows to the abdomen at different times, and the infliction of a number of other, non-fatal injuries. The offending was further aggravated by a failure to seek medical treatment which would have saved the child.
Gross neglect cases [53]
I turn to cases of that last kind. R v JV [2014] QCA 351 was a particularly serious case of neglect where twins slowly died through neglect of a mother and father. The Court of Appeal: “[31] These sentences do reveal a pattern in which the extent of departure from reasonable community standards is reflected in the severity of the sentence. They also indicate that a notional sentence of eight to nine years’ imprisonment has tended to prevail in instances of protracted, cruel harm to an infant child which has result in fatality.”
[54]
[55]
That was an extreme case of neglect in which the applicant’s conduct added to the mental unfitness of the twins’ mother and showed a complete abnegation of his responsibility for the twins. The Court described his departure from reasonable community standards as both “profound and inexcusable”. He had no criminal history and was aged 28. He was sentenced to eight years’ imprisonment. Other cases of cruel neglect include R v Green & Haliday; ex parte Attorney-General [2003] QCA 259. Because of their gross immaturity, a 23 year old and a 20 year old tied a child as a means of ensuring that she slept. She died of asphyxiation. Sentences of six 8
years imprisonment were not disturbed on an Attorney-General’s application for leave to appeal, which was refused. [56]
Reference may also be had to the single judge decision of Justice Martin in R v Kent, 15 March 2016. Kent was not the primary caregiver, and so had a more limited duty of care imposed by law. He was sentenced on the basis that most of the injuries were inflicted by the child’s father Matthew Lee Williamson. Kent co-operated in a significant way, and was sentenced pursuant to s 13A of the Penalties & Sentences Act, with the result that his publicly-stated sentence is not the sentence he would have received had he not undertaken to cooperate in giving evidence against Williamson.
[57]
These cases of neglect bring me to the case of Scown, which like the case of Kent, has been misunderstood publicly because of the s 13A element.
[58]
I should say something about one source of public misunderstanding of sentences that arise because of s 13A. Last week the Chief Justice of Queensland referred in general terms to media condemnation of sentences in cases in which, because of legislative prohibitions, the full details of the sentencing could not be made known to the public. The Chief Justice asked the public to accept that there may be more to a sentence than meets the eye, and asked for parliamentarians to act with restraint in their comments so as to not damage public confidence in the judicial system when the Court is constrained by legislation and cannot defend itself.
[59]
What I am about to say is not intended as a criticism of the law, which is a matter for the Parliament to make and amend. It is simply a description of how the law works in cases like Kent and Scown. In such cases, the non-discretionary confidential component of the sentence means that the publicly-pronounced sentence and reasons will tend to mislead, rather than enhance, community knowledge and understanding of penalties that are imposed in such cases. The procedure adopted in s 13A is designed to make confidential the undertaking to provide co-operation and the sentence which would have been passed had there not been co-operation. But that creates problems. The mitigating circumstance of the defendant having undertaken to co-operate in future criminal proceedings is only revealed in closed court. The publicly-pronounced reasons for the sentence, which is discounted by reason of that mitigating circumstance, does not reveal that the sentence was discounted for that reason. To the public, the sentence may appear inexplicably lenient, and undermine the interest in general deterrence and undermine public confidence in the criminal justice system.
[60]
But that is the law that was applied in Scown. The four year sentence he received in open court was less than the indicated sentence in closed court, being the sentence he would have received had he not undertaken to give evidence against you.
[61]
I note the sentence that was imposed upon Scown. However, his offending was different to yours, and he did not have primary care of Tyrell. He was sentenced on the basis that he omitted to obtain medical assistance in circumstances in which you also did not seek medical assistance when it was desperately needed, for fear that you would be “done for neglect”. Your conduct in not seeking medical treatment for Tyrell aggravates your offending. Your offending is different to that of Scown’s in that you inflicted the injuries.
[62]
Little is to be gained by a review of further cases, including the sentences of individual judges. I have had regard to R v Cataldo, a decision of Mullins J given on 4 December 9
2017. That case involved severe head injuries and fractures to a two month old daughter. The offender was 24 years old. He was sentenced to a term of imprisonment of eight years with parole eligibility after three years and 10 months. I also have had regard to the recent decision of North J in R v Baxter delivered on 21 November 2017. That was another case of a very young child, less than two months old, who died of a severe head injury as a result of blunt force trauma. He was sentenced to eight years’ imprisonment. After assaulting his daughter, he did not seek medical assistance for her. [63]
R v Williamson, a decision of Atkinson J given on 6 April 2017, involved an extreme case of violence and neglect. It was the case in which Kent was the co-accused. The assaults upon Williamson’s daughter were found to include sexual assaults and a punch to her stomach that ruptured her intestines. Atkinson J sentenced Williamson to nine years’ imprisonment and declared him to be convicted of a serious violent offence, which meant that he was required to serve 80 per cent of his sentence before being eligible for release on parole.
[64]
That was a case, like this, of a contested sentence in which Williamson had pleaded guilty to manslaughter. I infer that absent his plea of guilty, the sentence would have been one of more than 10 years.
[65]
I would regard Williamson as deserving of more punishment than you. It is difficult to compare cases. However, Williamson’s case involved a child who suffered from physical and sexual violence. I will not describe her multiple injuries which are set out in Atkinson J’s reasons for judgment. It might be said that the facts of that case were less serious than this case in one respect, namely that there was only one fatal injury from a punch to her stomach. However, the evidence left open the possibility that there was more than one punch.
[66]
Williamson’s neglect and abuse of the child made it a particularly serious example of manslaughter. He kept the child effectively locked in her room for many waking hours. He assaulted her on her head, arms and body on numerous occasions. As Atkinson J observed, the child had been the subject of repeated sexual assault, which Williamson either committed or was callously indifferent in protecting her against. That behaviour occurred over many weeks. Finally, a punch to the child’s stomach was hard enough to rupture her intestines, which slowly and painfully led to her death.
[67]
Williamson had some criminal history. He had not rehabilitated himself. His was an exceptionally serious case. The nine year sentence, coupled with a serious violent offence declaration, has not been subject to confirmation by the Queensland Court of Appeal. There is a pending application for leave to appeal, but it is not on the grounds of the sentence being either manifestly excessive or manifestly inadequate. I have regard to the nine year sentence which Atkinson J imposed. However, other judges may have thought that a sentence of more than 10 years was justified in the horrific circumstances of that case.
[68]
If Williamson was the only yardstick then, given its points of similarity and its points of difference, it would seem to me to justify a nine year sentence without a serious violent offence declaration in your case. However, it is not the only yardstick. The Court of Appeal cases in which applications for leave to appeal on the grounds of inadequacy were allowed and new sentences imposed have to be considered in the context of the practice,
10
at the time, of exercising moderation in resentencing and sometimes sentencing at the bottom end of a range in such a case. [69]
Some of the decisions cited to me involved offenders who suffered significant mental illnesses at the time they offended. I was cited interstate cases. However, the Queensland cases provide a number of yardsticks against which to arrive at the most appropriate sentence in this case.
Aggravating circumstances [70]
The aggravating circumstances in your case include the following: 1.
This is not a case of a single, fatal punch. There was more than one blunt force trauma to the child’s abdomen, one which occurred more than 24 hours before death and the second which occurred probably several hours before his death.
2.
The violence was not confined to the fatal injuries. Other non-fatal injuries were inflicted.
3.
Whilst it may have been of less force than the first, the second fatal blunt force trauma was applied when the child must have been obviously unwell.
4.
The infliction of injuries was compounded by a gross failure to seek medical treatment, when any ordinary person, let alone a primary carer, would have sought medical treatment.
Mitigating circumstances [71]
The mitigating circumstances include: 1.
Your previous good character.
2.
The fact that you had no criminal convictions before these events, and over the following eight and a half years you have not committed any further offence.
3.
You had been a good mother, at least when you were not agitated by the need to sedate yourself with cannabis. The complete picture includes episodes of verbal abuse and some slapping, and the infliction of a burn scar to the child’s leg. These episodes probably coincided with times when you were stressed and not using cannabis.
4.
Another mitigating factor is the steps you have taken towards your own rehabilitation in coping with traumatic stress and depression.
5.
You have expressed remorse to others, and remorse for failing to obtain medical treatment was implicit in your plea of guilty.
The most appropriate sentence [72]
The sentence to be imposed is the result of an integrated process. However, reference to points of principle, comparative cases and your circumstances cannot alter one simple and tragic fact. 11
[73]
A young life was needlessly lost. The taking of that life deprived Tyrell of the opportunity to lead a happy life. It has devastated many.
[74]
Some understanding must be extended to any parent who finds herself or himself in a state of desperation or frustration. However, the law must denounce resort to violence in every case, and must denounce and deter violence which is directed towards the most vulnerable in our community.
[75]
In arriving at an overall amount of imprisonment to be imposed, I should have regard to the consequences of making or not making a serious violent offence declaration. The evidence does not suggest that personal deterrence looms large in this case. There is little reason to think that you will re-offend in the same way. Protection of the public from an offender and the need for adequate protection may require a longer period in actual custody before eligibility for parole than would otherwise be available. Often, the discretion to make a serious violent offence declaration arises because the offence is a more than usually serious example of the offence in question. Something in the circumstances of the offence or the offender takes it out of the “norm” for that type of offence. As serious as your offending is, I consider that you can be sufficiently punished by a lengthy term of imprisonment without the exercise of my discretion to make a serious violent offence declaration.
[76]
Having regard to both the aggravating and mitigating circumstances, the submissions that have been made and the guidance provided by comparable cases, particularly decisions of the Queensland Court of Appeal, I consider that the most appropriate sentence is a term of imprisonment of nine years.
[77]
Given all the circumstances, including the need for punishment and the fact that your plea was a late and limited one, I consider that the non-parole period should be more than the usual one third. You will be required to serve four years in custody before being eligible to apply for parole. I have previously declared the 66 days spent in pre-sentence custody as time already served under the sentence.
[78]
I order that you be imprisoned for a period of nine years. Taking into account the 66 days spent by you in pre-sentence custody, I order that you be eligible for parole on 13 October 2021.
12
