A Queensland woman will be re-sentenced over the death of her four-year-old son Tyrell Cobb after the High Court upheld her appeal.
In 2017, Heidi Strbak pleaded guilty to the manslaughter of her son and was sentenced to nine years' jail.
Tyrell died in May 2009 on the Gold Coast due to blunt force trauma to his abdomen.
Strbak pleaded guilty to manslaughter for failing to get her son medical attention but denied the police allegation that she inflicted the fatal blow to his stomach.
Her ex-partner Matthew Scown also pleaded guilty to manslaughter and was sentenced to four years' jail.
Scown admitted he was criminally negligent but also denied inflicting the boy's fatal injuries.
Scown was sentenced to four years' jail and immediately released after already having spent two years and eight months in custody.
Strbak did not give evidence during her sentencing hearing in the Supreme Court. Instead, her version of events was before the court in the form of three police interviews.
When sentencing her, the judge took into account that Strbak had not given contradictory evidence to the crown case and concluded that she had applied the blunt forces that were a substantial cause of Tyrell's fatal injury.
In 2019, Strbak unsuccessfully appealed her sentence in the Queensland Court of Appeal, arguing the sentencing judge erred in having regard to the fact that she had not given evidence.
She was granted leave to appeal in the High Court, which today ruled the sentence be quashed.
The judgement states: "When sentencing an offender where there is a dispute as to the facts constituting the offence, the judge should not draw an adverse inference by reason of the offender's failure to give evidence, save in the rare and exceptional circumstances explained in the joint reasons in Azzopardi v The Queen."
"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."
Strbak will be re-sentenced at a date to be fixed.
