R v BBF[2006] QSC 179

SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

WHITE J

Indictment No 679 of 2005

THE QUEEN

v.

BBF

BRISBANE

DATE 25/05/2006

SENTENCE

HER HONOUR:  BBF, yesterday evening the jury returned a verdict that you were guilty of attempting to murder your daughter on the 9th of October 2004.  The baby was then 3 months old.  The means by which you attempted to kill the child was by suffocation.

The jury had the advantage of seeing and hearing a record of interview with the police that you gave on the 13th of October, just a few days after that event, and also saw you walk through your unit and re-enact, for the purposes of the video recording, the method in which you told police that you sought to suffocate the baby.

This involved placing a largish blanket over her face in her cot and when this did not cause her cries to desist, putting a small pillow over the blanket.  You told police that you intermittently pressed against the pillow which then pressed against the blanket and the child's face for a period of about 15 minutes.  In the record of interview and the demonstration you said that the force, which was with one hand, on a range of 1 to 10 was a force of about 6. 

The baby survived that, and you turned her on her face with her face into the pillow in her cot.  Now, whether the jury took the view that it was the first event of holding the blanket and the pillow over the baby's face, which constituted the act to which the intent to kill was attached, or whether they took the view that the second when you placed her with her face down into the pillow on her stomach was the relevant event to which the intent attached, or whether it was a combination of both, the Court cannot know.

You said that you expected that she would turn her head to the side but knowing that she was necessarily in a weakened condition - after all you said that it was a very hot day that day and you had covered her with this thick blanket - you walked away.  You did have some need to leave to go to the toilet but you certainly did not satisfy yourself on that second occasion that she was able to turn her head and breathe.

When you returned to the room about two minutes later, you found that she was blue and in great difficulty with laboured breathing.  You immediately rang 000 for an ambulance and carried out the instructions of the ambulance officer who had answered the telephone. 

The circumstances which brought this event to pass were these:  that you had a little girl of 15 months, and this little one was 3 months.  You thought that you might have been pregnant again because you felt so very ill.  You were living in a small but modern unit in a caravan unit village at the Gold Coast.  Your partner who was the father of the two little girls was at work.  You felt that you were not managing at all well.

The baby had had many difficulties from birth.  There were feeding difficulties.  There were some breathing difficulties and other matters that we heard about in the trial.  This necessitated her remaining in the Campbelltown Hospital until she was 30 days old.  You had also had some problems, as I understand it from the report of Dr Michael Beech, a psychiatrist, following the birth of your first child.

The relationship with your partner had been punctuated by episodes of violence on his part.  That is attested to from his criminal history which has been placed before the Court.  You did, however, have the support of your mother who saw you and the children, it seems, almost daily and worked with your partner.

You had some support from a next door neighbour at the village occasionally, but it is quite clear that you were not managing your role as a very young mother of two infant children, one of whom was sickly. 

You were born on the 17th of April 1984 and were then just 20.  You had come up to Queensland just a month or so previously from New South Wales so that you could have the support of your mother. 

All of these factors may explain in some way the circumstance in which you found yourself that day.  The child was failing to thrive.  You maintained that you were feeding her adequately.  It may well have been that your skills in managing her meant that she was not receiving the nutrition that she needed because it is clear that when she was in the hands of the professionals, both the New South Wales in the hospital and here at the Gold Coast, she put on appropriate amounts of weight.

You no longer have the care of those girls and subsequently in December last year you gave birth to a baby boy.  The three children are in the actual custody of your mother who cares for them, although they are in the care of the Department of Families. 

The circumstances on that day then, as you related them, were that it was very hot, that you felt a lack of support at being left alone with the girls, that you felt ill, and the baby would not stop crying, and you were driven to try and stop the crying in the way that I have outlined.

The report from Dr Michael Beech talks at length about your background and it seems quite clear that really you have had problems throughout your life, both at school and subsequently, and that your personal development has been such that you really are not fit to look after young children, and that is set out in Dr Beech's report in his conclusions, and I make reference to that report.  He says:

"In my opinion, it is likely that BBF has an undifferentiated personality disorder with features of emotional immaturity and affective instability.  It has been present since early adolescence and is moderately severe.  The prognosis at this stage is guarded.  However, it is unlikely that she would be capable of adequate parenting without support in the near future."

He went on to say that you require further treatment and counselling and should be referred for psychological therapy.

He makes the point that at the time you were immature and irresponsible and were likely to have placed your needs above those of your daughter. 

The evidence of the social worker who tried to engage with you in the Gold Coast Hospital after your baby had been admitted would seem to support that forensic conclusion of Dr Beech, where she found it very difficult to talk to you about the issues with your children and indeed you seemed more interested in matters that were very personal to you. 

You had interacted with a number of medical and counselling professionals since the birth of your elder daughter and you were recommended for counselling assistance after the birth of the first child but you chose not to take it up.  It is not the case then that you were unaware that you could get assistance but you did not feel that you were able to access that assistance.  You are extremely young to have had those two little girls in your care and anyone who has had to deal with a crying baby knows how difficult that can be.  It was not the case that you could not, however, have sought some assistance.  To take the action that you did was a gross breach of the trust which the baby had in you as her mother, and the verdict of the jury makes it plain that I must sentence you on the basis that when you did the things that I have described you intended to kill the baby in order for you no longer, it might be said, to be troubled by her incessant crying.  Nonetheless, you desisted and by that desisting, in ringing for the ambulance, you showed remorse in a very important respect. 

The prosecution does not suggest that I should proceed to sentence you other than in accordance with section 538 of the Criminal Code.  That provides:

"When a person is convicted of attempting to commit an offence, if it is proved that the person desisted of the person's own motion from the further prosecution of the person's intention, without its fulfilment being prevented by circumstances independent of the person's will, the person is liable to one half only of the punishment to which the person would otherwise be liable.  If that punishment is imprisonment for life"‑‑‑‑‑

And I interpolate to say that that is the maximum penalty for attempted murder:

‑‑‑‑‑"the greatest punishment to which the person is liable is imprisonment for seven years."

I have been referred to a number of comparable authorities by Mr Copley, as well as by Mr Hamlyn-Harris and it is not clear to me that those cases which deal with desisting from attempts to inflict harm or to kill were dealt with pursuant to that provision of the Criminal Code.  As Mr Hamlyn-Harris has said, it is a matter for a defendant to raise on sentence and it is therefore likely that that was not the case in those authorities to which reference has been made.

An observation by Chief Justice de Jersey, sitting as a single Judge in Treloar SC342 of 2001, a case in which a father pleaded guilty to the attempted murder of his two children by the use of asphyxiation with a car, said:

"These crimes would each warrant imprisonment for five years in the normal case.  In Treloar that was not the sentence that was imposed."

Those remarks were quoted with approval by the Court of Appeal in Black, CA No 28 of 2005 by Williams JA. 

The other cases to which I've been referred are not so comparable in terms of the facts or the ages of the persons that were involved, and some indeed were Attorney-General's appeals.  But the prosecutor has submitted for a range of five to six years for your sentence.  On the other hand Mr Hamlyn-Harris has made a submission that I impose a non-custodial term to the extent that an intensive correctional order or a wholly suspended sentence might be so described. 

He has made reference to a case of Bailey, in Victoria, a decision of Mr Justice Coldrey in Shepparton on the 22nd of November 2001.  The Court of Appeal in Black made reference to that decision but made the point that it is difficult to tell what the maximum penalty was for the offence of reckless conduct by placing a child in danger of death.  He also referred to the decision of Purton, a decision of Judge McLauchlan QC in the District Court of the 19th of March 1999 and Bennett, a case of grievous bodily harm in the Court of Appeal, CA 443 and 449 of 1998. 

As is clear, all cases of sentencing have got their own particular facts and can only be used as a broad guide.  I am of the view that a finding of attempted murder, which necessarily carries with it a finding of satisfaction beyond reasonable doubt that you intended to kill your baby daughter on the 9th of October, even though you subsequently desisted, calls for a period of imprisonment.  It is a very serious offence.  These vulnerable little ones in our community really need the public vindication of their rights, because they are silent on their own behalf. 

I impose a term of imprisonment of four years upon you.  In imposing that head sentence I take into account two important factors;  your youth and that the consequences for the baby physically have not been serious.  I also order that the report of the psychiatrist, Dr Michael Beech, which is Exhibit 4 on the sentence proceedings be placed with your custodial file and that those who have your care in prison pay particular attention to his concluding recommendations for your further therapy and needs.

Is there anything else I need to do, gentlemen?

MR HAMLYN-HARRIS:  No.

HER HONOUR:  Could I just now give you my reasons in the ruling I made at the beginning of the trial.  You'll recall I said I wished to not give those until after the verdict of the jury.  So my associate will hand those down to you. 

MR HAMLYN-HARRIS:  The only other matter, your Honour, was the time served in custody.

HER HONOUR:  Yes.

MR HAMLYN-HARRIS:  Unfortunately I understand it hasn't been possible for the - for the Crown to get confirmation of the period between the 26th, I think, and the 28th of October - sorry, between the 16th and the 18th of October 2004.  But my instructions are that's when she was in custody in the Watch House.

HER HONOUR:  And the 24th‑‑‑‑‑

MR HAMLYN-HARRIS:  Yes.

HER HONOUR:  ‑‑‑‑‑which is yesterday?  Mr Copley I propose, because it's relatively inconvenient to reassemble the Court‑‑‑‑‑

MR COPLEY:  Yes.

HER HONOUR:  ‑‑‑‑‑unless you have any strong submissions to the contrary to make the declaration with respect to those three - those periods, 16th to 18th and yesterday evening and if that is incorrect, then I can re-open the sentence rather than do it the other way round.

MR COPLEY:  Certainly, your Honour, but just to explain, my clerk did go and check with Police Liaison‑‑‑‑‑

HER HONOUR:  You can sit down.

MR COPLEY:  ‑‑‑‑‑and I've seen the computer printout from that which indicates clearly that last night was the only occasion.  But it may well be - it may well be that Southport has fallen through a crack.

HER HONOUR:  Well, the other problem is if they stay in the Watch House it's my understanding that Corrective Services don't assume responsibility in terms of calculation and regularly the calendar has to be corrected and the certificate goes a fair way, but it has been my experience this year, when they were introduced, that we've had to fix them up for that reason.

MR COPLEY:  Yes, very well, your Honour. 

HER HONOUR:  So why don't I do that then, Mr Copley?

MR COPLEY:  Certainly, your Honour, by all means.

HER HONOUR:  All right, thank you. 

Then I state that between the 16th and the 18th of October 2004 and the 24th of May 2006 were days served in custody in respect of this offence and none other and that those are days served under this sentence.

HER HONOUR:  Is it four days?

MR HAMLYN-HARRIS:  Yes, I'm just - I just thought your Honour had - between the 16th and the 18th of October 2004 and between the 24th and the 25th of‑‑‑‑‑

HER HONOUR:  Yes.

MR HAMLYN-HARRIS:  Yes, thank you, your Honour.

HER HONOUR:  So do you take that to be four days or five days?

MR HAMLYN-HARRIS:  I think it's four days.

HER HONOUR:  Sixteenth, 17th‑‑‑‑‑

MR HAMLYN-HARRIS:  I think it's those three days and then yesterday technically, yes.

HER HONOUR:  All right, thank you.  And then four days are days served.  Thank you.

MR COPLEY:  Your Honour, could I just ask for that formal order that the exhibits be returned to the‑‑‑‑‑

HER HONOUR:  Don't they have to be held here?

MR COPLEY:  Sure, until the time for appeal is limited.

HER HONOUR:  Till the 28 days are‑‑‑‑‑

MR COPLEY:  Yes.

HER HONOUR:  Yes, and then there'll be an order that they be returned‑‑‑‑‑

MR COPLEY:  At the expiration.

HER HONOUR:  ‑‑‑‑‑to whom they should be.  I can return your cases to you as well.

MR COPLEY:  Thank you.