New sentence hearing for killer mum
KILLER mum Heidi Strbak will face a new sentence hearing in August, before a different judge, after her successful High Court appeal.
In March, Strbak had her sentence for the death of her four-year-old son Tyrell Cobb quashed by Australia's highest court.
The Queensland mum was in 2017 jailed for nine years by Brisbane Supreme Court Justice Peter Applegarth, after pleading guilty to the manslaughter of her son Tyrell.
The little boy died a long and agonising death on the Gold Coast in 2009.
Justice Martin Burns today set down Strbak's new sentence hearing, which is expected to last at least three days, for five days from August 24.
While Crown prosecutor Philip McCarthy wanted the sentence to be before Justice Applegarth, Justice Burns decided a new judge should hear it.
Justice Burns also excused himself from doing the sentence, as he had sentenced Strbak's co-accused.
Mr McCarthy said Justice Applegarth had previously heard evidence and drawn conclusions on credit regarding some witnesses.
However, Justice Burns said it was expecting too much for Justice Applegarth to divorce himself from his reasoning for his previous decision.
He also said there might be a perception of pre-judgment, probably based on the difficulty of deciding the matter afresh, unaffected by Justice Applegarth's previous reasoning.
The High Court granted Strbak's appeal against the sentence after it found Justice Applegarth incorrectly assessed some facts in the case.
It said that on a number of occasions he accepted unproven prosecution evidence or a conclusion that reflected poorly on Strbak when determining her sentence.
This occurred because Strbak failed to give sworn evidence contradicting the prosecution at her sentencing hearing, the full bench said.
Strbak contested the allegation she inflicted a fatal blow to Tyrell's abdomen.
The blow led to the contents of his stomach leaking and internal bleeding, which caused his death.
Her defence team argued there was no direct evidence against her or co-accused Matthew Scown - a former partner and the boy's stepfather - but said the circumstantial case against him was stronger.
In sentencing her to nine years' jail, Justice Peter Applegarth found there was "a compelling circumstantial case that Strbak inflicted serious injuries that weekend on her son, including the fatal injuries".
"… There is no compelling evidence that Scown inflicted the fatal injuries that weekend," he said.
After unsuccessfully appealing this finding to the Queensland Court of Appeal, Strbak made a last-ditch appeal to the High Court of Australia to attempt to have her sentence reduced.
In March, the full court of the High Court allowed the appeal and set aside her sentence from December 2017.
Strbak will now be re-sentenced, but her conviction stands after she pleaded guilty to manslaughter.
She argued the sentencing judge should not have concluded she inflicted the fatal blows to the child, which caused his death.
Strbak's defence barrister Saul Holt argued there was an error in Justice Applegarth's reasoning, namely that he drew an adverse inference from the fact Strbak did not give evidence in her contested sentencing hearing.
"Notwithstanding his Honour's meticulous review of a large body of evidence, the determination of at least some contested facts adversely to the appellant took into account her failure to give sworn evidence at the sentence hearing," the High Court judgment said.
"... It cannot be said that the findings respecting the appellant's callous failure to seek prompt treatment for Tyrell's arm injury and instances in which she subjected him to physical violence were not material to the ultimate conclusion that she inflicted the fatal injuries."
*For 24-hour domestic violence support call the national hotline 1800RESPECT on 1800 737 732 or MensLine on 1800 600 636.
Originally published as New sentence hearing for killer mum