R v Rowe [2018] VSC 490 (31 August 2018)

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THE QUEEN

v

JOBY ROWE

JUDGE:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2018
DATE OF SENTENCE:	31 August 2018
CASE MAY BE CITED AS:	R v Rowe
MEDIUM NEUTRAL CITATION:	[2018] VSC 490

CRIMINAL LAW – Sentence – Child homicide – Not guilty plea – Death of three-month-old baby by shaking – Accused father of deceased – Isolated incident – Accused otherwise devoted parent – No prior criminal history – Excellent prospects for rehabilitation – No signs of remorse – Delay – General deterrence – Denunciation – Punishment – Sentenced to 9 years’ imprisonment with non-parole period of 6 years – 484 days pre-sentence detention.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Ihle	Office of Public Prosecutions

For the Accused	Mr J Fitzgerald	Victoria Legal Aid

1 Mr Rowe, you have been convicted by a jury of one charge of Child Homicide, a level 3 offence that carries with it a maximum of 20 years’ imprisonment.

2 Your daughter Alanah was born on 31 May 2015. She was three months’ old at the time of her death. At this time, you and Alanah’s mother, Stephanie Knibbs, had been living together for about a year in a unit in Pink Cliff’s Road, Heathcote. Stephanie’s five year old daughter also lived with you.

3 Alanah was born six weeks premature, and for the first two weeks of her life was admitted to the Special Care Unit at Bendigo Base Hospital. She came home small, but otherwise healthy. She was bottle fed from this stage.

4 You were actively involved in caring for Alanah. She had regular health and development check-ups from a maternal and child health nurse, Ms Elizabeth Hudspeth.

5 It is common ground between you and the prosecution that you were a caring and devoted parent. Both Ms Hudspeth and Ms Robyn McCarthy (a midwife) observed as much, as did Stephanie Knibbs and Stephanie’s stepmother, Joy Knibbs. You contributed to all aspects of Alanah’s care, including feeding her, changing her and taking an active interest in her development. You contributed to her green health book and penned questions for Stephanie Knibbs to put to Ms Hudspeth. Stephanie Knibbs trusted you to care for Alanah and, up until 29 August, your parenting was beyond reproach.

6 In the last week of her life, Alanah had been observed to be more unsettled than usual and increasingly irritable. You were working during this week. There is no evidence to suggest that you were having difficulty coping with this increasing irritability, and your text message exchanges with Stephanie Knibbs suggest, if anything, that you were coping well throughout this last week.

7 On the morning of Saturday 29 August, Alanah was unsettled and as you drove Stephanie Knibbs to work at the Union Hotel, Alanah remained crying and irritable. This persisted while you stopped at an ATM and continued until you reached the hotel. Stephanie Knibbs was reluctant to leave Alanah while in this state, but you assured her that the baby would be alright with you. There is no suggestion that Alanah had suffered any trauma up until this stage of the morning of 29 August.

8 Stephanie Knibbs remained at the hotel until about 2:20 pm. During this time, Alanah and her half-sister had been in your care at the Pink Cliffs Road unit. When Stephanie Knibbs arrived home, she noted immediately that the baby was unwell. Alanah was lying on the change table, apparently pale and gasping for breath. You said, ‘There’s something wrong with Alanah’. Shortly after that, Stephanie Knibbs observed that Alanah did not appear to be breathing. You said words to the effect, ‘All I did was feed her. All I did was give her a bottle’.

9 Stephanie Knibbs’ stepmother, Joy Knibbs, arrived at the unit at Stephanie’s request. Stephanie also telephoned 000. She and Joy Knibbs performed CPR on Alanah until the first paramedic arrived. Alanah did not appear to be breathing; her pupils were not reactive to light and there was an underlying slow heart rate.

10 Paramedics worked to save Alanah from 2:36 pm. I accept that you told the first of those paramedics, Mr Michael Holden, that Alanah became unconscious after vomiting and gasping while you fed her a bottle of formula. At 3:32 pm, 56 minutes after Mr Holden’s arrival, cardiac output returned, although Alanah was still unable to breathe unassisted.

11 Alanah was transferred by helicopter to the Royal Children’s Hospital. After she had left the unit, I accept that you had a further conversation with Mr Holden in which you stated that you were just trying to give the baby a bottle when she commenced gasping and coughing, she vomited, her nose bled, she fell backwards and became unconscious. You denied giving this account to Mr Holden and you denied giving a similar account to Mr Brad Sanders, a MICA flight paramedic. You told Joy Knibbs that Alanah coughed, choked a bit, so you sat her up and burped her. After you burped her, she fell asleep. You said this occurred at about the time Stephanie Knibbs returned to the unit.

12 You have essentially adhered to this account ever since, giving it to Dr Joanna Tully at the Royal Children’s Hospital and to the police in cautioned interviews on 30 August 2015 and 21 September 2015.

13 Alanah was in a very grave condition upon her arrival at the Royal Children’s Hospital. On 30 August 2015, her condition was determined to be incompatible with survival and life support was withdrawn. She died at 7:30 pm.

14 Examinations during the treatment phase and in a post-mortem autopsy have revealed that Alanah had sustained the following injuries, amongst others:

15 There were no signs of external injuries. Medical evidence was adduced at your trial from Dr Tully (forensic paediatrician), Dr Linda Iles (forensic pathologist) and Dr Troy Lim Joon (ophthalmologist).

16 I do not propose to recite it in any detail. It was the opinion of both Dr Iles and Dr Tully that the presence of the injuries I have set out was reasonably explicable only from inflicted head trauma from rapid acceleration/deceleration and rotational forces, resulting in hypoxic ischaemic encephalopathy, which caused death. In simple language, the two doctors opined Alanah’s death was the result of injuries caused by violent shaking with or without impact on a soft surface. As I have said, neither doctor considered that there was any other reasonable explanation.

17 Dr Lim Joon considered that the nature and widespread extent of the retinal haemorrhages were suggestive of significant head trauma.

19 I remarked to your counsel during the plea hearing that Child Homicide is a very serious offence. Its victims are always defenceless. The community trusts adults charged with the care of children to do so responsibly and conscientiously. You have breached that trust and the effects of that breach have been profound. They will be felt in the Knibbs family, and probably in yours, for a lifetime. The Victim Impact Statements expose the suffering and emotional rawness that members of Alanah’s family still feel nearly three years after her death. I take these statements into account.

20 Your background is unremarkable. You were 23 when Alanah died. Up until then, apart from a flirtation with drugs for a time, you had led a steady, relatively industrious life. You were raised by your now deceased mother Debbie and your stepfather Mr Michael Smith. Your childhood was happy and supportive as you followed Mr Smith from one excavating contract to another in different parts of New South Wales. When you were about 12-years-old, the family, which also consisted of your older half-brother Jamie, half-sister Cindy and your brother Morgan, moved to Kootingal near Tamworth.

21 You were not a great student and left school at the conclusion of Year 10. You worked as part of a touring show company which took you to showgrounds up and down the eastern states. You worked in this capacity for three and a half years and during this time formed a romantic relationship with a young woman. During this time you used cannabis and for a time smoked ice. You withdrew from that habit (ice) in about 2013, commenced work at an abattoir in Kyneton and then worked installing roadside signs for a year or so until the work ran out. It was while performing this work in 2014 that you met and commenced cohabitation with Stephanie Knibbs.

22 Your employment has been interspersed with periods of unemployment. In Alanah’s first 11 weeks of life you were home and out of work, but in her last week you had obtained work at a smash repairs business in Heathcote.

23 You were arrested on 21 September 2015 and were then remanded in custody for 456 days. After the jury disagreed at your first trial, you were granted bail on 19 December 2016. You then remained on bail (with quite restrictive conditions) until you were remanded in custody by me on 3 August 2018. For most of the 19 odd months that you were on bail, you worked steadily, erecting and maintaining safety barriers as part of roadwork in northern New South Wales. Your relationship with Stephanie Knibbs did not survive Alanah’s death and you commenced a new relationship in early 2017. You have a child from this relationship, a boy now aged seven months. The conditions of your bail have meant you have not been able to live with your current partner. Her geographic location and the terms of your current protective prison status mean that it is practically impossible to see her, your child or his three older half-siblings. Apparently you are not allowed to possess even a picture of your seven month old baby boy. I have taken this separation from your family into account in your favour. Whilst the nature of your current protective custody seems relatively unremarkable, I accept that the nature of your offending makes you more vulnerable to violent attack than most prisoners. I consider it likely that you will spend most of the sentence I impose in protective custody – some of it in relative isolation. It follows that I consider that your confinement is likely to be more burdensome than it would be if you were a mainstream local prisoner. I take this into account in your favour.

24 Your counsel has tendered without objection two references from your stepfather and half-brother Jamie. In combination, they speak of your steadiness, work ethic and devotion to Alanah. I accept these are positive aspects to your overall character. This evidence has been supplemented by a very thorough and helpful psychological report prepared by Dr Michael Davis, a consultant forensic psychologist. In short compass, Dr Davis observed:

25 I accept Dr Davis’s opinions. They reinforce my view that you have excellent prospects for rehabilitation. I take this into account in your favour. I also take into account in your favour that it is one month short of three years since you were charged and almost 17 months since the jury disagreed at your first trial. I accept that this delay must have involved significant anxiety and stress, particularly after June 2017 when you were uncertain whether, in fact, you would face a further trial as well as the obvious uncertainty as to its outcome. I also take into account in your favour that, as a result of the inconclusive first trial, you have had to confront the stresses of two criminal trials, rather than one. Given your sound prior and subsequent history, I consider it unnecessary to attach weight to the sentencing factors of specific deterrence and community protection.

26 I am unable to detect remorse. As I indicated to your counsel during the plea, I consider there to be a distinction between remorse and grief. I accept you grieve for Alanah. That does not translate into remorse in circumstances where for nearly three years now you have denied your role in her death.

27 I consider that your failure to admit to Alanah’s early treating paramedics and Dr Tully the true circumstances of your role in her condition constitutes a circumstance of aggravation. Given the jury finding that you violently shook Alanah, you must have been aware of this fact, yet you concealed it from those to whom this information may have been vitally important. This does you no credit at all.

28 I must give significant weight to the sentencing aspects of general deterrence, denunciation and punishment. Whilst I consider that your objective moral culpability is lower than some examples of child homicide (for example, protracted courses of cruelty, stomping or punching), it is still grave offending and demands exacting punishment. I also take into account sentencing practices and recent jurisprudence for this offence.

30 Balancing these factors as best I can, I sentence you to 9 years’ imprisonment. I shall set a period of 6 years’ imprisonment before parole eligibility. I declare that you have served 484 days of pre-sentence detention not including today.

Supreme Court of Victoria

R v Rowe [2018] VSC 490 (31 August 2018)