R v Horsey [1999] VSC 224 (7 May 1999)

Last Updated: 25 June 1999

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Do not Send for Reporting
	Not Restricted

No. 1560 of 98

R
V
MICHAEL JASON HORSEY

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATES OF HEARING:	14-16; 19-23; 26-28 April 1999
DATE OF SENTENCE	7 May 1999
MEDIA NEUTRAL CITATION:	[1999] VSC 224

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CRIME - manslaughter - sentence

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston	Solicitor for DPP
For the Defence	Mr D. Wraith	Victoria Legal Aid

Mr Justice Eames

7 May 1999

SENTENCE

MICHAEL JASON HORSEY

HIS HONOUR:

1. Michael Jason Horsey, you have been convicted by a jury of the manslaughter of Dylen Andrew Kevin Jones, a two year old child who was born on 31 July 1995, and who was beaten to death by you on 15 December 1997. It is now my task to pass sentence upon you for that crime.
2. For a period of approximately six months prior to Dylen's death you had been living in a de-facto relationship with his mother, Wendy Joy Butler, together with her elder son, Benjamin, who was three years of age at the time of the death of Dylen.
3. I am satisfied that even before you commenced your de-facto relationship with Wendy Butler you already disliked Dylen. I am satisfied that you had told three other people, at various times in the months prior to Dylen's death, that you hated the child, your antipathy arising in part from your hatred for Dylen's father, whom you believed had stolen your property at a time some twelve months prior to Dylen's death, when you had been a boarder with Dylen's parents. The other factor, and the primary reason for your dislike of Dylen, was that he was often an unhappy child who grizzled a lot. Dylen's mother took the view that having commenced a de-facto relationship with her you had to accept the fact that you had become part of a family with two small children. As the unfortunate history of Dylen's life demonstrates, his mother also found the children's behaviour very stressful at times.
4. Dylen was undoubtedly a difficult child in many ways. His development had been slow and from as early as 1996 both he and his brother had come to the attention of the Department of Human Services as children who were at risk whilst in the care of his mother and his natural father. Thus, at a time well before your own involvement in a relationship with Ms Butler, Department officers had been concerned for the well-being of Dylen and his brother.
5. Benjamin and Dylen were first notified to the Department on 14 May 1996 with reports concerning their safety and exposure to domestic violence, physical abuse and problems with parenting skills. Thereafter the Department had on-going involvement, right up to the day of Dylen's death.
6. Dylen's mother and natural father separated in July 1996 and the Department decided to leave the children with the mother but to maintain regular visits and regular case meetings. In December 1996 a Case Plan Meeting was held at which it was resolved that the child protection staff would continue to supervise the family, and day-care workers and Broadmeadow's Family Services would also become involved. In April 1997 a protection application was made with respect to both children, and both children were removed from the mother on 1 May 1997. At a hearing in the Children's Court the Department requested that the children remain away from the home but the court ordered that they be returned, and granted a supervision order for 12 months with respect to both children. Thereafter the Department had regular contact with the family, attending at the home between once a week or once a fortnight. On many occasions the mother sought, and was granted, respite care, as she found it to difficult to cope with the children. She was herself only 22 years old at the time of Dylen's death.
7. In about June or July 1997 you commenced a de facto relationship with Dylen's mother and thereafter you lived with her at her home in View Street, Glenroy.
8. In September 1997 there was a breach of the protection order and the children were placed under a new order of supervision. From time to time officers of the Department were concerned whether marks and injuries to Dylen and his brother had been the result of unlawful force, but they suspected the mother, and not yourself, as the author of any suspect injuries. Particular injuries observed on 10 October 1997, however, led to the children being ordered to be removed from the home and be placed in foster care. The Crown alleged that you were the author of those injuries. I will need to examine this matter in more detail.
9. The history of your own relationship with Dylen is not one of repeated violence by you towards him. Dylen's mother herself said that she had never seen you inappropriately discipline the children, but said that you had admitted, to her, having used unlawful violence to Dylen on two occasions prior to the day of his death.
10. The mother told the jury that in November 1997 you had admitted to her that on 7 October 1997 you had slapped Dylen to the face causing bruising to each side of his face and swelling to his ears. Those injuries were observed on 10 October 1997 by a paediatrician, Dr Dakin, at PANCH. Dr Dakin also observed a bruise to the back of Dylen in the shape of an adult hand. Those injuries were investigated by police officers from the community policing squad, who decided that there was insufficient evidence to issue proceedings against either you or the mother. In fact, the mother told them, at that time, that she had caused the injury to the back, but said it had been an accident. As to the head and face injuries, both you and the mother denied to the police knowing how those injuries had been caused, and innocent explanations for the face injuries could not be excluded at that time.
11. At the committal proceedings in June 1998, however, the mother said for the first time that she had not struck the child to the back on 10 October 1997, but that you had done so and had caused that injury.
12. Although you have disputed, on oath, having used unlawful force on either of those occasions I am satisfied, beyond reasonable doubt, that you did slap the child on 7 October causing the face and head injuries at that time, but I can not be so satisfied that you were the author of the injury to the back. It may be that you were. Indeed, in evidence before the jury you admitted that you had struck the child on the backside, at the relevant time, with what you described, improbably, as being a light tap. But you said that before administering that light tap the mother had already smacked Dylen, but not in your presence, and had caused him to cry. The allegation that you caused the handprint on the child's back has not been proved to the requisite degree for me to take it into account in sentencing you.
13. On attendance at the hospital on 10 October 1997 both Dylen and his brother were dirty and unkempt and Dr Dakin observed that Dylen was unruly and mistrusting and lacked normal social skills for a two year old. He offered no rapport or trust to the doctor. The observations of Dr Dakin led her to believe that the child was at risk, and she reported that observation to the relevant officers of the Department.
14. On 10 October 1997 David Clements of the Glenroy Department of Human Services, who had also telephoned Community Policing Squad and notified them of a case of possible physical abuse, caused the Department to issue a breach order with respect to the supervision order, which meant that the children were taken into care, and he then brought the matter back to court.
15. The court then ordered that the children be placed in foster care, where they remained for two months, but on 9 December 1997, six days before Dylen was to die, Dylen and Benjamin were returned to the home, after a hearing in the Children's Court. I do not know the precise circumstances in which that order was made. In earlier pre-trial conferences the mother had sought their return, and the Department had opposed that option, but it seems likely that the Department and the mother agreed on terms and conditions on which the children could be returned. On 2 December 1997 a document, known as a family contract, was jointly signed between the Department, the mother and yourself, and also representatives of the Families First Program. In that document you acknowledged the Department's areas of concern as to the well-being of the children, your obligations as a care giver, and the fact that you could not physically discipline the children. So far as I am aware the Children's Court was not called upon to adjudicate upon a contested hearing, but endorsed the terms and conditions on which it had been agreed that the children could be returned.

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16. It is not my function, on sentencing, to explore the broader issues which might later be relevant in a coronial inquiry. Whilst, with the benefit of hindsight, wrong decisions may well have been made at various times during Dylen's life, and need to be identified and understood, it is appropriate, I believe, to observe that from what I have read and heard of this case those members of the medical profession, the community policing squad, the officers of the Department or staff of the various welfare organisations, and of the officers and staff of the Courts who had a role in Dylen's supervision, did so with scrupulous integrity and dedication.
17. Those people charged with the supervision of the well-being of Dylen were required (to greater and lesser extents) to make difficult decisions with incomplete information. Why that was so is a matter worthy of examination by appropriate authorities.
18. The Department officers worked intensively with the family in the period whilst the children were under foster care. There was also involvement of Family Centres Reconnections Programme.
19. Dylen was placed in foster care with Mrs McSwain, a woman with ten years dedicated experience, together with her husband, in the role of foster parents. Mrs McSwain, with whom the child was placed on 29 October 1997, said that Dylen presented as a child who had no verbal skills, who could not communicate, and was extremely fearful.
20. After some time with her, Dylen learned to respond to some words read to him from a book. She said that based on her 10 years' experience as a foster parent Dylen showed all the signs of being a neglected child, and it was the most severe case of neglect that she had seen for a child of that age.

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21. Mrs McSwain said that when he came to her Dylen had apparently not learned to smile. I have received victim impact statements from Dylen's grandmother and aunt which suggest that there were occasions when he was happy in the company of his mother and others, but perhaps in his short, sad, life Dylen all too rarely had reason to smile, notwithstanding what I have no doubt was the genuine love which his mother had for him, and her best efforts to cope with his parenting demands, and the pressures of her own life.
22. After the child had been placed in foster care, child protection workers had considerable contact both with the mother and also with you. As part of that process, as I have earlier noted, you were required to sign a contract in which you acknowledged that the children were not to be the subject of physical disciplining by you or by the mother. You acknowledged in your evidence that it was made clear to you that it was dangerous to physically discipline a child of this age. There was one occasion during his time in Foster care when it was suspected that Dylen had been struck by someone during an access visit, but a medical practitioner was unable to conclude that the minor injuries then observed were the result of an assault. That event is not alleged against you by the Crown. It was the only occasion during the approximately two months of foster care when such an observation was made which might have suggested an assault had occurred.
23. The Department's officers were impressed by you during the period of foster care. You appeared to them to be calm and capable with the children, whereas the mother was easily stressed by them. They believed that you played a positive parenting role and provided support for the mother. I have no doubt that, notwithstanding your dislike of Dylen, you did offer support to the mother. Character evidence given on your behalf suggests that you have in the past been a calm and capable person when caring for children, and that your were proud of having assumed the role of parent to these two children.

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24. Furthermore, having deeply regretted that your own father had deserted his family, I believe that it was important to you that children receive what you considered to be proper parental support. That wish however, came up against your own immaturity and the anger control problems which were imbedded in your personality. I can not lose sight of the fact that you were only 21 years of age at the time of Dylen's death.
25. On 25 November 1997 Mr Clements spoke to you and you told him that you wanted to play a role as a father figure for both children, and that you would attend parenting classes with the mother, who was due to attend such classes at Queen Elizabeth Centre. On that same date you told Mr Clements of the anger you felt towards Dylen's father because of the way that he had treated Dylen's mother and the children. Nothing you said to him at that time caused Mr Clements to believe that you were a violent person. I accept that you were sincere in your statement that you wished to attend parenting classes and to play a role in the up-bringing of the children. Indeed, you would have attended such classes but for the fact that the first of them was not due to commence until January of 1998.
26. On 15 December 1997, the morning of Dylen's death, Mr Clements and other officers attended at the house and had discussions with you and the mother. You told him of an episode the previous week where you had become angry with the child, Benjamin, and had wanted to smack Benjamin for misbehaving, but said that you had realised that that was not appropriate, and so did not do so. You told Mr Clements that you knew that you were not to discipline the children physically and you said that you had in the past received counselling for anger but you had stopped that because of the expense. It is not clear what course you were referring to, but it was probably a reference to counselling sessions which you received when at school, after you had assaulted another student.

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27. Whether financial constraints then led to the cessation of counselling I do not know. Your own mother, who gave evidence before me, had not previously learned that you had been involved in such a episode at school, nor of episodes of violence towards your siblings, at an early age, which were acknowledged before me on your behalf.
28. On the morning of Dylen's death you told Mr Clements that you did not feel that your anger was then a significant problem, but said that if you felt in the future that it was becoming such then you would seek counselling.
29. Mr Clements asked what got you angry and you said Dylen's father did, and the way Dylen's father had treated the boys and the mother. You said that you had learned to handle your anger by going for a walk or to just remove yourself from the situation, to sit against a tree in the backyard, and when you felt you were becoming angry to just calm down in those ways.
30. Mr Clements made an assessment at that time that there was no cause for concern in what you said. Tragically he was wrong, but there were no signs which should reasonably have led him to believe at that time that these terrible events might occur within a matter of hours.
31. At approximately 7.30 pm on 15 December 1997 Dylen's mother left the house to attend to some shopping, leaving you alone to mind the two children. You had willingly minded the children on many occasions in the past.
32. You placed Dylen in bed but allowed the elder child to remain with you, watching television. Dylen was grizzling and crying and plainly did not want to go to bed. His crying increasingly annoyed you. You told the police that sometime after having placed him in the bedroom and having closed the door he made a sound consistent with him repeatedly kicking the door, or the wall, in his room and I am satisfied that you became angry.

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33. You entered the bedroom whilst in a rage and, finding Dylen lying on the floor, picked him up and placed him, face down, across your left arm. You struck him once firmly on the bottom and then when he kept crying struck him approximately three heavy blows to the back of the head with your open hand. You then placed him on his back in the bed and covered him with the doona.
34. As you were leaving the room Dylen continued to cry and, as you told the police in your later interview, you snapped, and rather than leave the room you returned to the bed and then struck him to the back of the head approximately six more times, firmly, with your open hand.
35. You then left the bedroom, shutting the door behind you, returned to the loungeroom with the child, Benjamin, and continued to watch television whilst, as you described in your evidence, trying to cool down.
36. In your evidence you said it was only then that you turned your mind to the question whether you had used too much force against Dylen and whether you might have injured him. The jury's verdict means that they were not satisfied beyond reasonable doubt that you struck Dylen either with the intention of causing him really serious injury, or that when you did so you knew that really serious injury would probably result from what you were doing. I understand the verdict to mean that the jury were satisfied that you struck Dylen at a time of blind rage when you did not turn your mind to the appalling dangerousness of what you were doing.
37. Notwithstanding the fact that on your own account you had struck him many severe blows and that, after you returned to the lounge room, it had occurred to you that those blows might have injured him, you did not return to the bedroom to check on his progress. You entered the bedroom about 15 minutes later but only for the purpose of placing Benjamin in bed.

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38. At that time, you observed that Dylen was showing signs of having been severely injured, so much so that you endeavoured to deliver CPR to him and you then took him from his own bedroom into the main bedroom, where you telephoned triple 0 and sought advice from the operator as to what steps should be taken to revive Dylen.
39. When you first found Dylen there was a very slight heartbeat, but within a short time, when ambulance officers and paramedics attended at the scene, he was found to be dead. You did not give an honest account to those persons seeking to revive Dylen as to what had happened to cause his unconsciousness. Although I am satisfied that your misleading accounts to those persons did not, in fact, reduce the chance of Dylen surviving, you were not to know that, and were more concerned with protecting your own interests than in providing reliable information to those for whom it may have been vital. Shortly before the arrival of the paramedics and the ambulance officers Dylen's mother had returned home. She was understandably hysterical when she saw Dylen's condition.
40. The direct cause of Dylen's death was that his brain, having suffered trauma, became swollen to such an extent as to cause him to cease breathing.
41. Dr Matthew Lynch, the pathologist who gave evidence in this case, indicated that Dylen had suffered trauma to the head which included three discrete and distinct bruises to the head consistent with mild to severe force having been applied. Dr Lynch said the observations which he made were consistent with there having been more blows than three, and in his view the injuries were consistent with your own account to police of your striking Dylen approximately 10 blows with an open hand to the back of the head while he was cradled in your arms.
42. You struck Dylen because you were angry with him and because you wanted to teach him a lesson. You wanted to teach him that he was not to grizzle.

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43. Dylen was a small child, weighing only 11 kilograms at death. The grotesque cruelty of a small child being beaten to death by an adult carer, as a response to the child's pitiful crying, is unfortunately not an uncommon event. You yourself knew before Dylen's death that shaking or assaulting a small child could cause death. There is an important consideration of general deterrence which must be acknowledged when sentencing you for this offence. The Courts must, when sentencing, repeat the warnings which have been made many times before that if a child dies in circumstances such as these a severe penalty can be expected.
44. There are, however, factors which militate in your favour on sentence. You were 21 years of age at the time of the offence. You offered to plead guilty to manslaughter on 17 September 1998, a fact which I must treat as indicating some measure of remorse. I would not, initially, have considered that there were any other clear indications of remorse in this case, but I was impressed by the evidence of Ms Margaret Dahl, a Uniting Church Minister and Prison Chaplin at Port Phillip Prison. Despite the fact that she had only held that position for about a year I accept, as justified, the opinion she formed as to your remorse. She told me that although you are a very private and withdrawn person she had had a number of conversations which left her in no doubt as to the fact, and the depth, of your genuine remorse for the death of Dylen.
45. You have no prior convictions, a matter of particular importance. You recognise that you have an anger problem and have enrolled to participate in a prison course to deal with this. You called character evidence from persons who had known you since you were young and attested to positive aspects of your character, indeed giving illustrations of caring and compassionate conduct on your part. Your mother identified the absence of your father from your life as a matter which caused anger in you from a young age. You attended school to completion of year 11, have obtained some computer qualifications and had a relatively uneventful youth, however, I accept that your own dislocated family upbringing has had a bearing on your present situation.
46. I have received victim impact statements from Rebecca Jones and Cheryl Jones, which eloquently attest to their own suffering and sense of loss at the death of Dylen. I have had regard to the views expressed by them in those reports.
47. Before proceeding to announce my sentence I want to deal with an application made by the Crown under s.464ZF of the Crimes Act 1958. Under that section the fact that you have been convicted of an offence known as a forensic sample offence - as manslaughter is - entitles me to make an order directing that you undergo a forensic procedure for the taking of an intimate body sample from your body. In considering that application I have had regard to the fact that you have no prior conviction, nor is there any reasonable basis for believing that your involvement in some past criminal activity might be exposed by virtue of such a sample being taken. Given your admitted anger problem I could not, however, discount the possibility that if you did not take steps to control your anger you might be later involved in some criminal activity where such a sample might contribute to your exposure. You have not opposed the request by the Crown for such a sample, and whilst I do not consider that such orders should be made routinely, I consider in the circumstances that such an order might appropriately be made for the reasons which I have specified. I therefore will make an order that you provide an intimate body sample, namely a blood sample, as required of you pursuant to this order.
48. I am obliged to point out to you, notwithstanding the fact that you did not oppose the making of the order, that a member of the police force may use reasonable force to enable the procedure to be conducted.
49. Michael Jason Horsey, the sentence of the court is that you be imprisoned for seven years. I order that you not be eligible for parole until the expiration of five years. I declare that you have been in custody up to and including today for a total of 508 days, which pre-sentence detention is to be entered in the records of the court as time having been served as part of your sentence.
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