DG v The King

[2025] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

DG v R [2025] NSWCCA 137

Hearing dates:

27 June 2025

Date of orders:

5 September 2025

Decision date:

05 September 2025

Before:

Bell CJ at [1];
Payne JA at [2];
N Adams J at [3].

Decision:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

Catchwords:

CRIME — appeals — appeal against sentence — intentionally causing grievous bodily harm to 10-week-old daughter — life threatening injuries — whether sentencing judge erred by failing to consider whether a finding of reduced moral culpability meant the applicant was a suitable vehicle for general deterrence — approach to application of Bugmy principles — sentencing person with a profoundly deprived childhood for a very serious violent offence

SENTENCING — re-sentencing on appeal — objective seriousness and moral culpability separate but related concepts — departing from findings of sentencing judge — where the Court will not impose a more severe sentence — instinctive synthesis — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 23A, 33(1)(b), 52B

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(eb), 44(2)

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6

Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:

Ahmad v R [2021] NSWCCA 30

Aslan v R [2014] NSWCCA 114

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Camilleri v R [2023] NSWCCA 106; 308 A Crim R 52

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Harris v R [2021] NSWCCA 322

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

LN v R [2020] NSWCCA 131

LS v R [2020] NSWCCA 27

Lupton v R [2024] NSWCCA 29

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

NK v R [2025] NSWCCA 73

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Paterson v R [2021] NSWCCA 273

Power v The Queen (1974) 131 CLR 623; [1974] HCA 26

R v Abrahams [2013] NSWSC 952

R v Bui [2025] NSWCCA 114

R v DG [2024] NSWDC 194

R v Eaton [2023] NSWCCA 125; 308 a Crim R 465

R v Engert (1995) 84 A Crim R 67

R v Lolesio [2014] NSWCCA 219

R v MB [2017] NSWSC 619

R v MJ [2023] NSWCCA 306

R v Simpson [2001] NSWCCA 297

Rv SO [2014] ACTSC 316

R v White [2025] NSWCCA 111

RO v R [2019] NSWCCA 183

Robertson v R [2017] NSWCCA 205

Tepania v R [2018] NSWCCA 247; 275 A Crim R 233

Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75

Category:

Principal judgment

Parties:

DG (Applicant)
Rex (Respondent)

Representation:

Counsel:
Ms C O’Neill (Applicant)
Ms M Millward (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s):

2022/00234569

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non -publication Orders Act 2020 (NSW) names and identifying features of applicant and victim are suppressed.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2024] NSWDC 194

Date of Decision:

09 May 2024

Before:

Anderson SC DCJ

File Number(s):

2022/00234569

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal against the sentence imposed by Anderson SC DCJ in the District Court of New South Wales on 9 May 2024. The applicant was sentenced following her plea of guilty to one count of intentionally causing grievous bodily harm to her 10-week-old daughter. The victim’s injuries were life-threatening and will have significant ongoing consequences for her, including cerebral palsy and infantile spasms. The offence carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years.

The applicant was sentenced to imprisonment for 6 years and 6 months, commencing on 7 November 2022 and expiring on 6 May 2029, with a non-parole period of 4 years and 2 months expiring on 6 January 2027.

The applicant relied on the single ground of appeal that after the sentencing judge found that the applicant’s moral culpability was significantly reduced due to the principles derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), his Honour erred in failing to consider whether that finding meant that the applicant was a suitable vehicle for general deterrence.

The Court (N Adams J, Bell CJ and Payne JA agreeing) held, granting leave to appeal and dismissing the appeal:

1. Discussion of the relevant principles when sentencing a person with a deprived background in relation to a serious offence of violence: [111]-[115] (N Adams J) (Bell CJ at [1] and Payne JA at [2] agreeing).

NK v R [2025] NSWCCA 73, considered and applied.

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Harris v R [2021] NSWCCA 322, cited.

2. The sentencing judge erred in failing to turn his mind to whether the applicant would be an appropriate vehicle for general deterrence due to her reduced moral blameworthiness before declining to reduce the weight given to general deterrence in the sentencing exercise: [124]-[134] (N Adams J) (Bell CJ at [1] and Payne JA at [2] agreeing).

NK v R [2025] NSWCCA 73; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, referred to.

As to re-sentence:

3. The Court did not adopt the findings of the sentencing judge that objective seriousness was reduced due to the applicant’s reduced moral culpability as that finding was contrary to authority. Further, the Court did not adopt the finding that the explanation for the offending was a “loss of control” as a result of Bugmy and mental health factors as there was no evidence before the Court to make that finding: [169] (N Adams J) (Bell CJ at [1] and Payne JA at [2] agreeing).

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; Camilleri v R [2023] NSWCCA 106; R v Eaton [2023] NSWCCA 125, considered and applied.

Paterson v R [2021] NSWCCA 273; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Tepania v R [2018] NSWCCA 247; 275 A Crim R 233, cited.

4. In its instinctive synthesis, the sentence that the Court would have imposed was slightly higher than that which was imposed by the sentencing judge. Accordingly, as the Court would not impose a more severe sentence, the appeal was dismissed: [172]-[177] (N Adams J) (Bell CJ at [1] and Payne JA at [2] agreeing).

RO v R [2019] NSWCCA 183; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, referred to.

JUDGMENT

1. BELL CJ: I agree with N Adams J.

2. PAYNE JA: I agree with N Adams J.

3. N ADAMS J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act1912 (NSW) to appeal against the sentence imposed on her by his Honour Judge Anderson SC in the District Court of New South Wales on 9 May 2024. The applicant pleaded guilty in the Local Court to one count of intentionally causing grievous bodily harm to her 10-week-old daughter, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The victim’s injuries were life-threatening and will have significant ongoing consequences for her, including cerebral palsy and infantile spasms. This offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years.

4. Allowing for a discount of 25% for her early plea of guilty, the applicant was sentenced to imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 2 months. The sentence commenced on 7 November 2022. The non-parole period will expire on 6 January 2027, and the head sentence will expire on 6 May 2029: R v DG [2024] NSWDC 194.

5. The applicant does not contend that the sentence imposed on her was manifestly excessive, nor could she. Rather, she seeks leave to appeal against the sentence in reliance on a single ground of appeal, namely, that “[t]he sentencing judge erred by refusing to reduce the weight to be given to general deterrence”.

6. The respondent took issue with the framing of this ground of appeal. That is unsurprising; it is well established that a ground of appeal contending that more (or less) weight should have been given to a particular factor, without a corresponding ground contending that the sentence is manifestly excessive, is not a category of error recognised in House v The King (1936) 55 CLR 499; [1936] HCA 40: R v White [2025] NSWCCA 111 at [30] per Bell CJ (Payne JA and N Adams J agreeing).

7. At the hearing of the appeal, it was confirmed that, consistent with the applicant’s written submissions, the error contended for was that after the sentencing judge found that the applicant’s moral culpability was significantly reduced due to the principles derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), his Honour erred in failing to consider whether that finding meant that this applicant was a suitable vehicle for general deterrence.

8. This case raises for consideration, yet again, the complexity involved in sentencing an offender who has had a profoundly disadvantaged background and gone on to commit a very serious crime of violence. Needless to say, the relevant sentencing purposes pull in very different directions in this case.

Facts

Background

9. The applicant was sentenced on the basis of Agreed Facts tendered at the proceedings on sentence. As the sentencing judge pointed out (at [5]), it was necessary for his Honour to set them out in some detail to understand, inter alia, the context of the offending and the victim’s prognosis. Given the issues raised in this application, I consider it necessary to take the same approach.

10. The applicant was born in 1993 in the Northern Territory. She is an Indigenous woman whose primary languages are Walpiri and Gurindji. English is her third language.

11. In about 2000, the applicant met Dr Sabine Boes. She is a medical practitioner who was working in Alice Springs at that time. Dr Boes invited the applicant to come and stay with her in Gosford which she did from time to time including every January and Easter for several years.

12. The applicant first fell pregnant when she was 15. That child was given to another family. The applicant fell pregnant for the second time when she was 18. That child was given to an extended family member.

13. The applicant fell pregnant for the third time in 2020. She contacted Dr Boes and asked if she would take the child. Dr Boes encouraged the applicant to abort the pregnancy, but the applicant did not wish to do so. Instead, the applicant repeatedly asked Dr Boes to take the baby and raise it with her husband.

14. In approximately August 2020, whilst the applicant was pregnant, she was violently assaulted by her partner in Katherine. She moved to Darwin and became homeless. Over the next few weeks, the applicant telephoned Dr Boes, whilst she was apparently intoxicated, asking for money and for food.

15. In about January 2021, Dr Boes located the applicant and decided to take care of the baby and the applicant after the baby was born. The applicant agreed to come to Sydney and stay with Dr Boes.

16. The applicant’s third baby, the victim, was born on 10 January 2021 at 34 weeks gestation suffering from foetal alcohol syndrome, a cleft palate, and a cleft lip. She weighed only 1.7 kilograms at birth. The applicant had engaged in chronic alcohol abuse throughout her pregnancy and was severely assaulted on at least three known occasions, having been kicked and punched to her stomach throughout the pregnancy.

17. After the victim was released from Darwin Hospital on 25 February 2021, she was placed in foster care until 4 March 2021 by which time she was feeding well and gaining weight. On 2 March 2021, it was determined that she had a hearing difficulty with her left ear and another test was organised to test the right ear.

18. Dr Boes flew to Darwin on 1 March 2021 for a court hearing to determine the victim’s guardianship arrangements. Dr Boes found the applicant wandering the streets. The court ordered that there be no further follow up with the applicant and the victim on the condition that they both fly with Dr Boes to Sydney within three weeks.

19. The applicant and the victim arrived in Sydney on 5 March 2021 and resided in Turramurra with Dr Boes and her partner, Mr Lloyd Topp. The Turramurra house was three stories with seven bedrooms. Five other persons boarded at the premises. The applicant and the victim slept in the main bedroom which had an ensuite. Dr Boes and her partner lived elsewhere within the home.

20. During the first week Dr Boes stayed home most of the time, only working when Mr Topp was at home. She observed the victim to be feeding well. The applicant had dinner with Dr Boes and her partner every night and Mr Topp often settled the victim. Dr Boes and Mr Topp assisted the applicant with feeding, caring for and bathing the victim but the victim was under the primary care of the applicant who often cared for her without direct supervision.

21. On 15 March 2021, Dr Boes took the applicant and the victim to a local general practitioner for the victim’s six-week checkup and vaccinations. The general practitioner noted that the victim appeared healthy and well and was moving her arms and legs and head appropriately for someone of that age.

22. On about 20 March 2021, the applicant told Dr Boes and Mr Topp that she wanted to return to the Northern Territory and leave the victim in their care. Dr Boes discussed this with the applicant’s uncle and various family members from the Northern Territory.

23. On 21 March 2021, the applicant signed a statutory declaration giving full guardianship of the victim to Dr Boes and Mr Topp.

The offence

24. At about 3.00pm on 23 March 2021, Dr Boes went to work leaving the victim at home with the applicant. She returned home at about 12.30am on 24 March 2021. Upon returning home, she observed the applicant’s light on in her room. She knocked on the door and saw the applicant lying on the bed, facing the victim. The victim was sleeping and there was a cloth over the right side of her head. Dr Boes asked the applicant how the victim was, and the applicant told her that the victim was “fine”.

25. On 24 March 2021, Dr Boes observed the applicant in the kitchen and was told that the victim was sleeping. Dr Boes left the house to attend other errands and returned at 3.30pm.

26. At around 5.00pm on 24 March 2021, Dr Boes went to the applicant’s room. She observed the victim was sleeping in a rocker but not moving her arms. She was placed with the right-side of her head leaning on the rocker’s surface.

27. At about 7.15pm on 24 March 2021, Dr Boes asked the applicant if she had bathed the victim. The applicant told her that she had not. Dr Boes offered to assist her in performing that job. Dr Boes poured the bath and then picked up the victim and upon doing so noticed “a cracking feeling” to the right-side of the victim’s skull. She noticed a blue haematoma on the victim’s right-eyelid and that the victim’s right eye was deviating to the right.

28. Dr Boes immediately called out to Mr Topp and told him that she had to go to the hospital immediately. She asked the applicant to pack a bag for the baby in preparation for a 24 hour stay. Dr Boes took the victim to her car and placed her in the baby seat. On the way to the hospital, Dr Boes tried to contact the emergency ward at Westmead Children’s Hospital. She then decided to call an ambulance and drove to an emergency car spot at the Sydney Adventist Hospital, which was on the way from Turramurra to the Children’s Hospital.

29. An ambulance received the alert at 8.04pm and arrived eight minutes later. Dr Boes flagged the ambulance down and told the officers, “[t]he baby is sick and she has a head injury. I don’t know what happened. She needs to get to Westmead Hospital”. The paramedics transported the victim to Westmead Children’s Hospital and began treating her on route with Dr Boes’ assistance. The ambulance officer asked the applicant what happened to the victim. The applicant responded that she did not know. While on route, the victim had episodes of apnoea in which she intermittently stopped breathing, and her heart rate dropped to about 40 beats per minute. This occurred twice and, on both occasions, Dr Boes performed CPR.

30. When the victim arrived at Westmead Children’s Hospital she was treated by doctors in emergency. She was intubated and provided with emergency treatment to stabilise her condition.

31. Whilst in the emergency department the applicant said, “I think I was having a nightmare last night and I hit the baby in the head one time whilst the baby was sleeping”. The paramedic asked the applicant, “[d]id you have anything in your hand, like a phone or an object to hit the baby”. The applicant said no, she did not have anything in her hand. She stated that the baby was crying and that she hit the baby in the head.

32. At about 9.20pm, a social worker arrived at the hospital. When questioned, the applicant told her, “I may have woken up from a nightmare and hit [the victim] but I don’t know. I have never done that to any of my kids before.”

33. On the night of 23 and 24 March, one of the boarders who was living in the house at Turramurra had noted that having been in the room all night, he had heard the victim crying quite loudly. The cries were louder than usual and more frequent than what he had noticed before. He said that the crying was so bad that night that he could hardly sleep.

34. Another boarder at the house that night stated that at approximately 2.00am he got up to go to the toilet and heard the victim crying from the applicant’s room. He went back to sleep and woke up when his alarm went off at 5.30am. He heard a huge scream from the baby followed by a continuous screech. He noted that the baby continued to cry until about 6.00am and that he had not heard the baby crying like that before.

The injuries

35. On 31 March 2021, a specialist paediatrician from the Child Protection Unit, Dr Susan Marks, provided an interim medical report outlining the victim’s presentation. The victim was described as having multiple injuries including serious injuries to her brain with healing fractures. The injuries were highly suspicious for having been inflicted on more than one occasion. The victim was transferred to a general ward that day and on 21 May 2021 she was transferred to a different children’s hospital. On 16 July 2021, the victim was discharged “under assisted living” with her aunt and uncle. The victim received ongoing treatment for her significant injuries during that time.

36. On 4 April 2022, Dr Marks prepared an expert statement. She summarised the multiple injuries the victim presented with as follows:

1. Bilateral parietal skull fractures and subcutaneous haemorrhages;

2. Multiple brain contusions – these were mainly in the frontal and temporal lobes (superior left frontal, inferior left frontal, left parietal, anterior left temporal, interior right frontal, anterior right temporal) which indicated significant forceful blunt force injuries;

3. Multiple parenchymal brain lacerations caused by severe traumatic brain injury. These were observed in the bilateral frontal area, bilateral parietal area and the bilateral anterolateral temporal area. This type of injury is caused by blunt force trauma, rotational head injury, crush head injury or a combination of these forces;

4. Extensive subdural haemorrhages in both supratentorial compartments and infratentorial, in distribution typical for acceleration - deceleration injury. The victim had extensive bleeding in her head, left eye and spinal region;

1. Thoracolumbar spinal subdural haemorrhage;

2. Unilateral retinal haemorrhages, in particular to the left eye that had multiple intraretinal haemorrhages extending from the central retina (indicative of severe head trauma involving shearing forces); and

3. Cervical spine ligamentous injury.

37. Dr Marks described the skull fractures as “complex”. There were fractures on more than one skull bone and there was more than one fracture to the right parietal bone. Dr Marks opined that there was no evidence of an underlying disease or infection to explain the findings and that there was no evidence of underlying brain malformation, such as cerebral vascular malformation.

38. Dr Marks opined that the victim’s injuries could have been caused by an excessively forceful impact injury to her head, with her head being unsupported or unrestrained at the time, however, the history as provided by the applicant that she may have hit or punched the victim in the head that night before the victim presented to the hospital did not, in Dr Marks opinion, account for all of the victim’s head injuries.

39. In the absence of a clear history of significant trauma, Dr Marks concluded that each of the findings individually and considered together would be explained by inflicted (abusive) trauma, including forceful blunt trauma injuries to her head as well as a component of forceful acceleration and deceleration/rotational injury.

40. With respect to the skull fractures, they could have been caused by two possible mechanisms, either blunt force trauma to the head or a forceful squeezing of the head, but it could not be determined as to what mechanism was in fact used.

41. The victim has suffered a number of other significant bony injuries that were not explained by the history provided by the applicant to investigators. Some of them were found to be healing, indicating that the victim had sustained an injury on more than one occasion. There was no history provided to indicate when or how the victim sustained any of the fractures. Significant force would have been required to cause the bony injuries, and they would not have occurred because of the victim’s own activity or because of normal handling.

42. The victim had healing rib fractures indicating an injury was sustained more than a week prior to the victim’s presentation to hospital. The victim’s healing arm fracture indicated that the injury occurred prior to the day of presentation and fractures of the small bones of the hands and feet carried “a strong association with inflicted injury and typically result from significant twisting and bending forces rather than direct blows”.

43. The Agreed Facts stated that “[t]hese injuries cannot be taken into account in assessing the instant injury. Inclusion in the facts solely is to show the instant offence was not an isolated injury”.

44. Dr Marks opined that the victim’s head injuries had been life threatening. There was a delay in presentation after these injuries occurred. The main contributing factor to the victim’s overall prognosis would be the severity of her primary head injuries. Dr Marks’ expert opinion was that if the victim had been presented more promptly for medical intervention it would be expected that her prognosis would have been more favourable as medical treatment aimed at minimising and preventing secondary brain damage would have been provided sooner. A further delay in presentation to the victim could have been fatal.

45. Dr Marks outlined the victim had a severe traumatic brain injury which resulted in extensive cerebral softening. The victim has lost a significant amount of brain tissue as a consequence of the traumatic injuries described. The injuries in Dr Marks’ opinion have, and will continue to have, a significant and ongoing impact to the victim’s health and neurodevelopmental progress. The victim has ongoing issues as a result of her severe traumatic brain injury, including cerebral palsy and infantile spasms.

46. It would be expected that the victim would require regular medical reviews, therapeutic interventions, and some level of support on a long-term basis. The Agreed Facts concluded in these terms:

“The precise extent of the contribution of the injury to the victim’s ongoing presentation is unable to be assessed against other contributing factors, such as the presence of foetal alcohol syndrome, genetic factors, and other factors affecting the victim’s neurodevelopmental outcomes such as environmental factors.”

Proceedings on sentence

47. In addition to the Agreed Facts and Charge Certificate, the Crown tendered the applicant’s criminal and custodial history.

48. The applicant did not give evidence on sentence. She put her subjective case before the sentencing judge based on the following documents:

1. Report from psychologist Vanessa Edwige dated 8 April 2024;

2. An affidavit from her solicitor, Emma Grant, dated 22 April 2024 which annexed amongst other things, the applicant’s Northern Territory hospital records, Justice Health records and a chronology of matters relevant to the applicant’s experience within the criminal justice system;

3. An interview conducted between the applicant and her counsel, Ms Rose Khalilizadeh, dated 4 March 2024;

4. A letter from Mr Tim Croft and Ms Tia Croft dated 11 April 2024;

5. Substantial extracts from the Bugmy Bar Book; and

6. Extracts from a Report titled “An evaluation of the Katherine Alcohol Management Plan and Liquor Supply Plan”.

49. The submissions on sentence focussed on factors relevant to the assessments of both the objective seriousness of the offending and the applicant’s moral culpability. The Crown accepted that the prior bone injuries suffered by the baby could not form part of the assessment of objective seriousness but deprived the applicant of any leniency that might have been afforded if this had been an isolated event or an isolated injury. The applicant’s counsel accepted that this was “serious offending”.

50. The Crown accepted that the applicant’s childhood history “without doubt” enlivened the Bugmy principles. The following was submitted in writing:

“Whilst the Crown concedes that:

the offender has a powerful subjective case and

that the subjective case has the capacity to reduce the offender’s moral culpability and the weight to be attributed to general and specific deterrence

the seriousness of the offending, and the impact (both at the time and in the future) on a 10 week old baby incapable of defending herself, cannot be overlooked in the imposition of sentence.” (Emphasis added.)

51. The Crown also submitted in writing on the subject of mental illness that:

“… it would be open on the balance of probabilities, to find that the offender’s emotional regulation and judgment were affected by the mental health conditions which flowed from her background of trauma”.

52. In oral submissions, the Crown submitted that “it would be open” to the sentencing judge to “make a finding that the subjective material has the capacity to lead to a finding of a reduction of moral culpability and the weight to be attributed to deterrence”.

53. The applicant’s counsel submitted in writing that her mental health was relevant on a number of bases, one of which was that it made her an “inappropriate vehicle for general deterrence”. Although extensive oral submissions were made addressing the Bugmy principles and urging a finding of reduced moral culpability, no specific submissions were made on behalf of the applicant as to the relevance of such a finding to the sentencing principle of general deterrence.

54. There was some dispute at the hearing as to whether the sentencing judge could be satisfied on the balance of probabilities that the offence was unplanned as a mitigating factor. The Crown submitted that although it “seems very likely” that the offending was unplanned there was no reliable version before the court of what occurred such as to permit a positive finding that the offence was unplanned.

55. In response, the following submissions was made on behalf of the applicant:

“KHALILISADEH [sic]: … In my submission, there is nothing to indicate that it was planned, but I know that that’s not necessarily the way to approach the test. But when one looks at the state of affairs with the facts that there’s admissions made to her having a response to the baby crying, there’s in the context of poor sleep and nightmares, we have evidence about her mental state at the time as being dysregulated. I refer to this as being an acute period. In my submission, there is sufficient evidence to find that it was unplanned. There’s certainly no indicia of there being any sort of forethought as to injuring the child.

HIS HONOUR: Look, I don’t think, unless the Crown can talk me out of it, I don’t think I’d have any difficulty finding as a mitigating factor that this was unplanned. I mean, this has to be something that isn't - you've already spoken about the constellation of events which are going on in [DG’s] life at the time, but just given the time of night that it occurs one could imagine that she's particularly frustrated, things have escalated, and this is the result of it. It's not a planned event in any way I wouldn’t – I couldn’t conceive of how it could be planned.”

56. His Honour expressed some concern as to whether Ms Edwige was qualified to diagnose any mental illnesses given that she was neither a clinical psychologist nor a forensic psychiatrist (Ms Edwige has a Bachelor of Education, a Graduate Diploma in Psychology and a Master of Education (Counselling Psychology)). Ms Edwige’s clinical opinion was that the applicant suffered from Post Traumatic Stress Disorder (PTSD), persistent depressive disorder, substance use disorder and “complex developmental trauma”. Ms Edwige further opined that the applicant was “suffering from a mental health impairments [sic] that was clinically significant”

57. When his Honour raised these concerns with the applicant’s counsel, the prospect of adjourning the proceedings to obtain a report from a different expert was raised. There was ultimately no need for this to occur as the Crown indicated that she did not take issue with Ms Edwige’s qualifications stating, “[g]iven the circumstances of this case” the findings were “fairly uncontroversial”.

58. It should be noted that at the time the Crown declined to raise an objection as to Ms Edwige’s qualifications to diagnose the applicant with a mental illness, it had not been suggested on behalf of the applicant, or by the sentencing judge for that matter, that anything in Ms Edwige’s report could be used to reduce the objective seriousness of the offending.

Remarks on Sentence

59. After setting out the facts as extracted above, his Honour turned to assess the objective seriousness of the offence under the heading “Objective seriousness”. His Honour addressed the factors enumerated in the decision in R v Lolesio [2014] NSWCCA 219 (at [75]) as being relevant to an assessment of the objective seriousness of an offence contrary to s 33(1)(b) of the Crimes Act.

60. His Honour was satisfied that the injuries caused are “extreme” and, at the time that they were detected, “life threatening”. His Honour noted that the victim also had a number of “complex preexisting serious health issues” prior to the assault. His Honour proceeded on the basis that at least some of the victim’s ongoing health issues could be traced to the applicant.

61. His Honour was satisfied that the victim was vulnerable, being 10 weeks of age at the time. The applicant was in a position of significant trust being the victim’s mother. The obvious physical disparity in size and strength between the applicant and the victim was noted as was the deliberate infliction of grievous bodily harm.

62. His Honour was not able to assess the question of cruelty because the applicant had given so many different versions of events about exactly what happened. His Honour noted that the applicant accepted responsibility for the injuries, but that in her accounts she sought to minimise exactly what she had done.

63. His Honour was satisfied that the assault was intentional and not the result of one instance of lashing out with a fist or object to have sustained the multiple injuries described by Dr Marks. Although his Honour could not conclude how many times the victim was shaken or hit or otherwise assaulted, he was satisfied that it was “over a length of time and not simply one event”.

64. His Honour was satisfied that the assault was “violent and unjustified” and committed on “perhaps the most vulnerable type of person in the community”. His Honour then observed this at [48]:

“The objective seriousness of the offender’s conduct is made worse because after inflicting the injuries to the victim she did nothing to help her. But for the intervention of Dr Boes, the length of time the victim would have been left untreated will never be known. In the circumstances I determine the offence to fall above the midrange of objective seriousness.”

65. Still under the heading of “Objective seriousness” his Honour went on to observe the following at [49]:

“I have though, considered the offender’s moral culpability in the circumstances of this case and I have found that it has reduced to a considerable degree for the reasons I will detail later, but as presently relevant because of her mental health and childhood deprivation issues which are causally related to the offending conduct because of what I regard as its spontaneous and unplanned nature.”

66. His Honour went on to note that the only relevant aggravating feature was that the offence occurred in the victim’s home: s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”).

67. The applicant’s criminal history was noted. She was disentitled to “full leniency” on this basis. Although not specifically referred to by his Honour, the applicant had a criminal record in the Northern Territory which had not led to any terms of imprisonment. She had also committed offences of violence after the index offence. The applicant was not arrested and charged until over a year after her assault on her baby during which time she continued to live in the community in Sydney. She was placed on conditional release orders (CROs) for common assault and destroy property on 15 June 2022 and called up for breaching those orders. She was charged with assault occasioning bodily harm and contravening an apprehended violence order on 20 June 2022 and placed on Community Correction Orders (CCOs). She was called up for those offences as well and spent some time in custody from August to November 2022. Finally, she was charged with assaulting and hindering police on 20 November 2022 and placed on further CCOs.

68. His Honour then turned to set out the applicant’s subjective case under a heading “Subjective Material”. Before doing so, his Honour observed at [54]:

“I have taken all of that material into account but there is some of it I wish to refer to in detail because it goes directly to the powerful subjective case, which is before the Court, and to issues of moral culpability, childhood deprivation and as a consequence, the reduction in objective seriousness.” (Emphasis added.)

69. The applicant is a Walpiri and Gurindji woman from the Northern Territory. She was 27 years old at the time of the offence, and she was almost 31 years old at the time of sentence. Her subjective case is summarised at length by his Honour at [55]-[68].

70. The applicant had lived most of her life across various cities, towns and communities in the Northern Territory. She was placed in the care of her maternal aunts and grandmother at a fairly young age because her mother was in and out of gaol. The applicant was sexually assaulted and became pregnant at about the age of 14 or 15 and gave birth to a child who was cared for by a family member. The applicant met another partner when she was around 18 years old and had a son to that partner. The applicant reported that both she and her then-partner were “drinkers” and he was physically violent towards her on a daily basis, including while she was pregnant.

71. The applicant lived in Katherine until she was about 26 years old. She told Ms Edwige that around this time she started to be a “bad alcoholic” when living in a town camp in Katherine. The applicant described heavy daily alcohol use and interactions with police.

72. The applicant experienced domestic violence at the hands of multiple partners, including while she was pregnant with the victim. She was hit in the head with a machete and hospitalised. She was hospitalised on numerous occasions both as a result of assaults by third parties and at least once for self-harm.

73. The applicant’s schooling was interrupted. She told Ms Edwige that she did not attend High School because she was travelling a lot with her family. She left school in Year 9. The applicant reported vision difficulties and behavioural issues at school. She continues to experience issues with literacy and English, which is not her first language.

74. The applicant began smoking marijuana at the age of 10 but stopped after the birth of her first child. She reported “huffing and sniffing” aerosol inhalants between the ages of 10 and 15. The applicant started drinking alcohol after the birth of her first child and commenced drinking heavily at the age of 18. She was not seeing any drug or alcohol counsellors whilst in gaol. She had never been diagnosed with a mental health disorder. His Honour then noted the following summary by Ms Edwige at [61]:

“DG describes a childhood, adolescence and early adult that was marred by out of home care, early exposure to substance misuse, parental incarceration, [redacted], homelessness and interrupted schooling. These adverse childhood and adult experiences significantly impact on a person’s social and emotional wellbeing”. (redaction in original)

75. The sentencing judge observed that Ms Edwige had identified five key areas of disadvantage suffered by the applicant. His Honour dealt with each in turn at [62]-[64]. Those five areas were: drug and alcohol abuse, incarceration of her mother, domestic violence, homelessness and lack of education. His Honour then observed this at [64]-[66]:

“[64] All of these matters are of significant consideration. All of these matters are well recognised by the Courts as creating issues of childhood deprivation which can have a long-term negative impact on a person and each of those matters have been taken into account to the fullest extent possible by this Court. As Ms Edwige has stated:

‘It is evident from DG’s childhood and history that she experienced significant adverse childhood experiences. She was exposed to significant disadvantage that significantly impacted on her social and emotional wellbeing and continues to do so’.

[65] Ms Edwige also stated:

‘DG presents as a woman that has experienced significant adversities throughout her life. She was exposed to significant trauma throughout her life that have had a significant impact on her social and emotional wellbeing. She has survived assaults and significant domestic violence from a young age. She continues to present with recurrent and intrusive memories of traumas experienced as a child’.

[66] All of those matters, as I say, are of great significance to the Court.”

76. His Honour took into account the recorded interview between the applicant and her counsel and the letter from Mr and Mrs Croft who identified the applicant’s willingness to engage in rehabilitation but the difficulty in accessing culturally appropriate programs whilst she is in custody.

77. The sentencing judge took into account the mental health issues suffered by the applicant. Although his Honour did not go on to describe those mental health issues, it is accepted that this was a reference to Ms Edwige opining that the applicant met the diagnostic criteria for PTSD, persistent depressive disorder, and substance use disorder (alcohol use disorder in sustained remission in a controlled environment). Each was described by Ms Edwige as a sequelae of, or related to the trauma and disadvantage experienced by the applicant.

76. His Honour turned to consider the “Mitigating Factors” at [69]-[74] which were identified as the plea of guilty and that the offence was not a planned or organised activity. His Honour was satisfied that the applicant was remorseful.

77. As for the applicant’s risk of re-offending, his Honour observed the following at [70]-[71]:

“[70] With respect to whether DG is unlikely or likely to reoffend, and rehabilitation, I cannot reach the same relatively positive conclusion of Ms Edwige. Ms Edwige states:

‘DG’s prospects of rehabilitation are extremely positive. If she accesses intensive therapeutic work that focusses on skill development in the areas of self-regulation, coping skills, resilience building and self-esteem.

[71] I interpret that to mean that her prospects for rehabilitation are dependent on her receiving intensive therapeutic work. In addition to receiving such therapy, the offender must also be willing to accept it and act upon it. This is her first attempt at rehabilitation it would seem. While I accept that she is making some progress in custody with the work and the courses she is undertaking, in the circumstances of her long-term and tragic history this is clearly a work in progress that is just beginning. She has taken some important steps towards rehabilitation since being in custody.”

80. His Honour made a finding of special circumstances and concluded that the applicant’s prospects of rehabilitation were “guarded”.

81. His Honour then turned to consider the applicant’s moral culpability at [75]-[82] under that heading. He noted that there were two paths for a reduction in this matter. The first of these were by application of “Bugmy factors” and the second path relied on the applicant’s mental health condition. As to the second of these factors, his Honour said this at [76]-[77]:

“[76] The additional path to a reduction of moral culpability is where an offender’s mental health condition has a causal connection with the offence. In those circumstances it may affect both an assessment of moral culpability and in some rare cases objective seriousness. However, more than a simple or indirect causal connection between the relevant subjective feature and the offending is required before objective seriousness is reduced.

[77] The nature of the impairment, the nature and circumstances of the offence and the degree of connection between them must all be considered. In such a case, the objective seriousness of the offence might be reduced substantially because the conduct was neither planned nor premeditated.” (Emphasis added.)

82. In support of the italicised statement of principle at [76] his Honour cited the decision in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156. I shall return to consider that decision further below.

83. His Honour went on to consider the applicant’s disadvantaged background noting (at [79]) that the applicant’s “mental health and the significant childhood deprivation that has been described has had an ongoing and negative effect on her life”. His Honour was satisfied that this had “significantly reduced her moral culpability in relation to this offence”. His Honour was satisfied that the applicant “was never provided with the skills necessary by her parents, or anyone else, to live a law-abiding life, having been exposed to violence and drugs from a very early age”.

84. His Honour then observed that, “[w]here profound childhood deprivation has been established there is no need to require that a causal link between that and the background and the commission of the offence be established” citing Lupton v R [2024] NSWCCA 29 at [150] and R v MJ [2023] NSWCCA 306 at [132]-[135]. His Honour then stated that, “[h]owever, if the offender’s childhood deprivation is also to lead to a reduction in the objective gravity of an offence there does need to be such a link” citing Camilleri v R [2023] NSWCCA 106; 308 A Crim R 52 and R v Eaton [2023] NSWCCA 125; 308 A Crim R 465 at [53]. I shall turn to consider these cases below as well.

85. His Honour then concluded his reasons under the heading “Moral Culpability” at [82] as follows:

“I consider that a causal link has been established on the evidence between the offender’s childhood deprivation and the objective criminality and her conduct. DG has been exposed, as I say, to appalling and ongoing violence of various types for almost 20 years, similarly, an exposure to alcohol and drug use. Her complex mental health presentation, distress of the unfamiliar environment of Sydney, thousands of kilometres away from her country, being - to use her term – ‘grog sick’, have in the courts (sic) view, all combined to create a loss of self-control which is directly responsible for the victim’s injuries.” (Emphasis added.)

86. Her Honour then went on to consider the applicant’s mental health under a heading “Mental Health”, noting at [83] that:

“An offender’s mental health may be relevant on sentence firstly, where it contributes to the offending in a material way to reduce moral culpability, secondly, it may mean the person is an inappropriate vehicle for general deterrence, thirdly, it may mean that custody may weigh more heavily on that person and be more onerous, fourthly, it may reduce or eliminate specific deterrence, conversely, such a person may present more of a danger to the community in which case specific deterrence may increase.” (Emphasis added.)

87. His Honour went on to observe the following at [84], in one of the passages the subject of the complaint under ground 1:

“Clearly the diagnosis put forward by Ms Edwige impacts on reducing the impact of specific deterrence in this case. Her particular issues will also make custody more onerous, and I have taken those matters into account to reduce her sentence. However, general deterrence for a matter such as this will not be reduced because of its critical nature in the instinctive synthesis, and I will return to that matter shortly.” (Emphasis added.)

88. His Honour went on to note the 18 month delay between the offence and being charged. It was noted that there was no evidence of any uncertain suspense that had an adverse effect on the applicant, but his Honour was satisfied that it would be present in any offender (at [86]).

89. His Honour then turned to consider the sentencing principles in s 3A of the Sentencing Act. In particular, his Honour stated the following about general deterrence at [90]-[92]:

“[90] I have already referred to general deterrence. There is a clear need for general deterrence to mark the community’s abhorrence of crimes committed against a young and vulnerable child. Babies and young children cannot protect themselves from the acts of adults. They cannot verbalise complaints about the conduct they experience. They are entirely reliant on the adults around them to care for them and to protect them.

[91] The Courts must make clear by their sentences that acts of violence of young children will not be tolerated and that the criminal acts of violence against young children will result in appropriately severe sentences. Whilst I have found that the appellant’s mental health and childhood deprivations reduce her moral culpability and the objective seriousness of her conduct, it does not follow that the other matters in s 3A do not still have a role to perform.

[92] Notwithstanding that, while I have reduced the roles of some of those considerations within the instinctive synthesis, there is still a role for general deterrence, denunciation and the protection of the community. I should note, that in considering the appropriate sentence to be imposed, in addition to considering the cases the parties referred to me during the sentence hearing and the JIRS statistics, noting their limitations, I have also considered the schedule of cases available on the Public Defender’s Chambers website for offences of this nature.” (Emphasis added.)

90. His Honour confirmed a finding of special circumstances (s 44(2) of the Sentencing Act) and indicated his intention to impose a non-parole period of just under 65% of the head sentence.

Submissions on appeal

Applicant’s submissions

91. The applicant noted that it was common ground at the proceedings on sentence that general deterrence could be afforded less weight because of the applicant's profoundly disadvantaged background and mental health issues.

92. It was noted that although the sentencing judge questioned Ms Edwige’s expertise and ability to provide the diagnoses contained in her report, the Crown did not take issue with that aspect of her report.

93. It was submitted that his Honour erred in refusing to reduce the weight to be given to general deterrence because, notwithstanding the applicant's mental health issues, the offence was an act of violence towards a young child. The error was only having regard to the fact that the offence fell within a particular category without considering whether the applicant’s deprived background and mental health issues made her an appropriate vehicle for general deterrence

94. It was submitted that there is no presumption that if an offence falls within a particular class or category that general deterrence will not be reduced: Aslan v R [2014] NSWCCA 114. Similarly, in R v Engert (1995) 84 A Crim R 67, Gleeson CJ at 68 observed that:

“In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

95. It was submitted that a sentencing judge must examine the relevant facts in a particular case in determining the weight to be afforded to general deterrence. This includes the nature of the offence, but also includes the subjective circumstances of the offender. Reliance was placed on the following passage in Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 per Bell CJ at [130]:

“The need for general deterrence in any given case, however, must always be assessed by reference to the personal circumstances of the offending and which may have operated on the offender.”

96. Reference was made to the decisions in R v Abrahams [2013] NSWSC 952, R v SO [2014] ACTSC 316, R v MB [2017] NSWSC 619 and LN v R [2020] NSWCCA 131 as cases where offenders who killed children were not considered to be good vehicles for general deterrence. It was submitted that the fact that a matter involves a crime committed against a young and vulnerable child is not the end of the sentencing judge's consideration of the issue of general deterrence. It remains that the personal circumstances of the offender must also be considered to determine whether a reduction is required.

97. It was noted that placing a constraint on the sentencing discretion in particular types of cases was an approach eschewed in Robertson v R [2017] NSWCCA 205 per Simpson J (as her Honour was then) at [89] and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [101].

98. Reliance was placed on the fact that the offence was spontaneous and unplanned in nature which meant that general deterrence was of limited utility: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (“Munda”) at [54]. Further, the sentencing judge was satisfied that there was a causal link between the offence and the applicant's background and mental illness.

99. It was submitted that the applicant's subjective case weighed heavily against an emphasised role for general deterrence given her PTSD, complex developmental trauma, severe depressive disorder, substance abuse disorder and background of social deprivation.

100. At the hearing, it was accepted that the ground was pleaded as being a complaint about weight but that properly understood the ground was that the sentencing judge gave determinative significance to the nature of the offence rather than considering whether the applicant was a suitable vehicle for general deterrence. It was noted that the Crown did not make any submissions before the sentencing judge that this offence fell within a class such that the weight to be given to general deterrence should not be reduced.

101. Reliance was placed on Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) at [53]-[55] concerning the reduction of general deterrence as a principle.

102. It was accepted that the sentencing judge’s finding about general deterrence appears to have been made in context of the applicant’s mental health issues rather than extending to her deprived background.

103. The Court’s attention was drawn to the recent decision in NK v R [2025] NSWCCA 73 as an example of what the sentencing judge ought to have done in this case.

Crown submissions

104. The Crown submitted that, to the extent that the sole ground was described as being a complaint about weight, the difficulties inherent in such a ground, advanced in the absence of a complaint of manifest excess, are so well established as to have been described in Ahmad v R [2021] NSWCCA 30 at [18] as “trite”.

105. It was acknowledged that the sentencing judge was faced with a very difficult sentencing exercise where objective and subjective considerations pulled in different directions. In that context, and having carefully considered the issue, the weight to be afforded to general deterrence in the exercise of the sentencing discretion was a matter for his Honour.

106. It was submitted that the sentencing judge did not only have regard “to the fact that the offence fell within a particular category”. Nor did his Honour give the nature and seriousness of the offending determinative significance in considering the weight to be afforded to general deterrence. Rather, the sentencing judge recognised and gave effect to the observation in Bugmy at [44]. In considering the weight to be afforded to general deterrence, the sentencing judge explicitly observed that he had found that the applicant's mental health issues and childhood deprivation reduced her moral culpability and had ameliorated the significance of other sentencing factors, but, having done so, his Honour concluded that there remained a role for general deterrence in the determination of an appropriate sentence.

107. Although it was accepted that the Crown submitted before the sentencing judge that it would be open to reduce the significance of general deterrence, the sentencing judge was not bound to accept the parties’ submissions on this issue. While the Crown accepted that the applicant’s subjective case had the “capacity” to (relevantly) reduce the weight to be given to general and specific deterrence, it stressed immediately thereafter that “the seriousness of the offending, and the impact (both at the time and in the future) on a 10 week old baby incapable of defending herself, cannot be overlooked in the imposition of sentence”.

108. It was submitted that the approach of the sentencing judge and his conclusion are consonant with NKv R at [110]-[112]. Although it was accepted that the sentencing judge did not undertake the same degree of analysis as set out in NKv R, it was submitted that there was a sufficient degree of analysis to satisfy the Court that his Honour did not err in the way contended for under this ground.

109. The Crown took the Court through the sentencing reasons and submitted that when read fairly as a whole his Honour did not err in the manner alleged; he had a broad discretion as to what weight to place on general deterrence. Further, it was noted that at [92] the sentencing judge stated that “[n]otwithstanding that, while I have reduced the roles of some of those considerations within the instinctive synthesis, there is still a role for general deterrence, denunciation and the protection of the community” (emphasis added). It was submitted that this shows that his Honour did reduce the significance of general deterrence to some extent.

110. Finally, it was submitted that the sentencing judge was not required to specifically address whether the applicant was an inappropriate vehicle for general deterrence. What his Honour had to do was to deal with the question of weight to be afforded to general deterrence. His Honour did so in accordance with NKv R in the context of a consideration of the nature of the offence and the applicant’s subjective case whilst also acknowledging that moral culpability had been significantly reduced.

Consideration

111. The applicant’s complaint raises for consideration, yet again, the relevant principles when sentencing a person with a deprived background in relation to a serious offence of violence. The correct approach was recently confirmed by Yehia J (with whom Ball JA and Fagan J agreed) in NKv R. Although the error in that case differed to that contended for in the present appeal, the relevant principles were re-stated in a way pertinent to the disposition of this ground.

112. The starting point is the principle derived from the following two passages in Bugmy at [43] and [44]:

“[43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (Footnotes omitted.)

113. In NK v R, after citing these passages, Yehia J observed at [100], uncontroversially, that an assessment of moral culpability is made by reference to matters subjective to an offender and that an offender’s moral culpability may be reduced by reason of a background of deprivation, mental health conditions and youth. I note that cognitive impairment is another relevant subjective factor: see Muldrock. Her Honour went on to observe that in some cases there will be an interplay between several subjective factors that may have a cumulative effect on the reduction of moral culpability. Her Honour summarised the relevant principles at [101]-[103] as follows:

“[101] It is incumbent upon a sentencing judge to first assess whether that background operates to reduce the offender’s moral blameworthiness for the offending. For example, the exposure to domestic and family violence or alcohol and drug use, during an offender’s formative years, may operate to normalise that conduct such as to have an impact upon their capacity to reason, appreciate the full wrongfulness of their actions, control their conduct, understand the consequences of their offending, and may impair their capacity for emotional regulation, and increase immaturity and impulsivity.

[102] A sentencing judge is then required to consider how the offender’s reduced moral culpability, and the reason for that reduction, bears upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution and promotion of rehabilitation: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [92]-[93] (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ). A reduction in moral culpability may also have an impact upon other sentencing considerations including but not limited to a finding of special circumstances.

[103] A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 per Dhanji J at [89] (Simpson AJA and Ierace J agreeing). A sentencing judge is required to have regard, as far as is relevant, to countervailing factors which may include the protection of the community and the need for the sentence to vindicate the dignity of the victim and reflect the community’s disapproval of the offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54] (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); Marrah v The Queen [2014] VSCA 119 at [16] (per Redlich and Tate JJA).”

114. The reference to the observation by Dhanji J in Harris v R [2021] NSWCCA 322 is to the following passage (at [89]):

“… the factors leading to reduced moral culpability do not automatically translate to a reduced sentence. The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act are varied and, as has been said many times, will commonly pull in different directions. As the High Court’s decision in Bugmy makes clear, while a finding of reduced moral culpability may lead to a reduction in the weight to be given to general deterrence, that reduction may be counter-balanced by a corresponding need for community protection: Bugmy at [44], set out above. Additionally, the need to ‘recognise the long standing obligation of the State to vindicate the dignity of each victim of violence’ and to ‘express the community’s disapproval’ of the offending remained: Munda at [54] and see also Christopher Ross v R [2019] NSWCCA 314 at [44]; Dungay v R [2020] NSWCCA 209 at [142].”

115. Yehia J went on find error in NKv R in a way not directly relevant to the present appeal, but, significantly, her Honour then went on to describe the correct approach in such a case to be as follows at [110]-[113]:

“[110] In my view the correct application of the Bugmy principles involves the following considerations. Firstly, a sentencing judge must make an assessment of whether an offender’s background reduces their moral blameworthiness, bearing in mind that the High Court in Bugmy said, ‘… a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending’ (at [43]).

[111]…This assessment is made by reference to matters subjective to the offender. An offender’s moral blameworthiness cannot be assessed by reference to factors unrelated to an offender, such as the purposes of sentencing.

[112] Secondly, if moral culpability is reduced, a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. For instance, a reduced moral culpability may mean that the extent to which the conduct is denounced is less than in a case where the offender has a ‘normal’ or ‘advantaged’ background. On the other hand, the reduction in moral culpability may be offset by the weight afforded to general deterrence and/or the protection of the community.

[113] Thirdly, even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more purposes of sentencing, an offender’s background of disadvantage must be given ‘full weight’ in ‘every sentencing decision’: Bugmy at [44].” (Emphasis in original.)

116. The parties accepted the correctness of this approach set out by Yehia J in NKv R but joined issue as to whether the sentencing judge had in fact adopted it in sentencing the applicant.

117. I have set out the sentencing judge’s reasons above in some detail. His Honour made a finding that the applicant’s moral culpability was “significantly” reduced on account of a combination of Bugmy factors and the principles derived from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”). Although his Honour did not expressly cite this latter decision, it is clear that his Honour sentenced the applicant based on the principles derived from it. In De La Rosa, McClellan CJ at CL summarised the relevant principles as follows at [177]:

“[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

●Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

●It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

●It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

●It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].”

118. The sentencing judge was satisfied that there was a causal link between the applicant’s childhood deprivation and the offending. His Honour appears to have included the applicant’s mental health presentation in that finding (at [82]). After making that finding under the heading of “Moral Culpability”, his Honour then went on to consider the significance of the applicant’s “mental health” under a separate heading and went through the De La Rosa considerations. In doing so, his Honour did not make a further finding of reduced moral culpability under that heading. Instead, his Honour found that special deterrence was of less “impact” in the applicant’s case, that custody would be more onerous for her and that, “general deterrence for a matter such as this will not be reduced because of its critical nature in the instinctive synthesis” (emphasis added): at [84].

119. His Honour returned to the relevance of general deterrence at [90]-[92]). At [90], his Honour stated that, “[t]here is a clear need for general deterrence to mark the community’s abhorrence of crimes committed against a young and vulnerable child”. Then at [91] his Honour stated:

“Whilst I have found that the appellant’s mental health and childhood deprivations reduce her moral culpability and the objective seriousness of her conduct, it does not follow that the other matters in s 3A do not still have a role to perform.” (Emphasis added.)

120. And then at [92]:

“Notwithstanding that, while I have reduced the roles of some of those considerations within the instinctive synthesis, there is still a role for general deterrence, denunciation and the protection of the community.”

121. His Honour’s reference to s 3A of the Sentencing Act was a reference to the following purposes of sentencing:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender,

7. to recognise the harm done to the victim of the crime and the community.

122. The finding of reduced moral culpability required the sentencing judge to then consider how that finding bore upon the weight to be attached to these various sentencing factors: see NKv R at [102]. His Honour expressly referred to these factors at [89]-[92]. In particular, he was satisfied that the harm done to the victim was a significant factor to consider in this matter as was general deterrence.

123. I have considered the Crown submission that the sentencing judge did in fact reduce the weight to be afforded to general deterrence to some extent. I am unable to be satisfied of this given that at [84] his Honour held that “general deterrence for a matter such as this will not be reduced because of its critical nature in the instinctive synthesis”, and then went on at [92] to make the finding extracted at [120] above.

124. There was no dispute before the sentencing judge that in the event that his Honour made a finding of reduced moral culpability it was open to his Honour to reduce the significance of deterrence. Although I accept the Crown submission in this Court that his Honour was not bound to accept the position of the Crown in that regard, it was at no time suggested during the proceedings on sentence that his Honour might do other than take the course advanced by the parties.

125. Although the weight to be afforded to each of the sentencing factors in s 3A of the Sentencing Act was wholly within the sentencing judge’s discretion, the High Court decisions of Bugmy and Munda suggest that when considering the impact of a finding of reduced moral culpability, the sentencing factor that may be of less significance is general deterrence: Bugmy at [44], Munda at [54]. That reflects an understanding that a person who has reduced moral blameworthiness for an offence is not a good vehicle to be used as an example to deter others. But even though the significance of general deterrence will often be reduced for a person who has had their moral culpability “significantly” reduced, as occurred here (at [79]), it may mean that other factors such as community protection and recognition of harm to the victim may have more significance.

126. Although it is clear that his Honour expressly considered the importance of general deterrence in this matter, the only reason he provided for declining to reduce its significance was directed at the seriousness of the offending. It is not apparent from the reasons that his Honour turned his mind to why the applicant would be a suitable vehicle for general deterrence.

127. I accept the applicant’s submission that the sentencing judge gave determinative significance to the seriousness of the offence. No other reason for declining to make a finding that general deterrence was of less significance in the applicant’s case was provided in circumstances where his Honour had found that her moral culpability was “significantly” reduced.

128. Ultimately, although it is clear that his Honour was keenly aware of the complexity involved in sentencing a person with such a strong subjective case for a very serious crime, it is not apparent to me that his Honour turned his mind to whether this offender would be an appropriate vehicle for general deterrence before finding that he did not propose to reduce the weight given to that purpose in this sentencing exercise.

129. Although I am satisfied that his Honour erred in this regard, the fact remains that his Honour clearly mitigated the sentence to a significant degree on account of the applicant’s reduced moral blameworthiness. The objective seriousness of the offending was very high. The injuries were life threatening and would have been less serious had the applicant attempted to get help for her baby after she violently assaulted her. Although the applicant pleaded guilty, she at no time gave a satisfactory explanation for the injuries. Her prospects of rehabilitation were guarded. Her criminal record did not entitle her to leniency and nor was this assault on her baby an isolated event. The offence carries a standard non-parole period of 7 years imprisonment and a maximum penalty of 25 years imprisonment.

130. It is well established that the non-parole period of any sentence must reflect the criminality involved in the offence: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26; R v Simpson [2001] NSWCCA 297 at [63]. The only explanation for an imposition of a sentence with a non-parole period of 4 years and 2 months was that the sentence had been significantly ameliorated on account of the finding of reduced moral culpability.

131. Despite the careful and nuanced approach undertaken by the sentencing judge and the fact that his Honour must have weighed the reduction in moral culpability heavily in his process of instinctive seriousness, the fact remains that his Honour did not explain why he considered the applicant to be a good vehicle for general deterrence as part of that synthesis.

132. Accordingly, I would uphold this ground.

133. Error having been established the Court is required to re-sentence the applicant afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Objective seriousness on re-sentence

134. The Crown submitted that, in the event of re-sentence, this Court would correct the error made by the sentencing judge in relation to his finding of reduced objective seriousness based on the finding of reduced moral culpability. On behalf of the applicant, it was submitted that the finding made by his Honour was open to him and that the Court would not interfere with that finding on re-sentence.

135. It is open to this Court to re-visit findings made by the sentencing judge in the event of re-sentence, but only if procedural fairness has been afforded to the respondent: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]; LS v R [2020] NSWCCA 27 at [43], R v Bui [2025] NSWCCA 114 at [261]. In circumstances where the Supreme Court (Criminal Appeal) Rules 2021 (NSW) do not provide an opportunity for the Crown to file a Notice of Contention in applications such as this, the only way for the Crown to invite the Court to correct purported error on re-sentence is in its written submissions, as occurred in this matter. Counsel for the applicant was able to address on this issue at the proceedings on sentence. I am satisfied that procedural fairness has been afforded on this issue and the Court should revisit this relevant finding by his Honour.

136. Before turning to consider the submissions on this issue, it is necessary to set out the sentencing principles relevant to the separate but related concepts of objective seriousness and moral culpability.

137. The relevant authorities concerning the nature of these two findings were considered by this Court in DS v R; DM v R. In that decision, the Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) rejected a submission put on behalf of the applicants that an assessment of an offender’s “moral culpability” was part of the determination of the objective seriousness of the offending. As the Court concluded at [128]:

“[128] The principal contention made in support of this ground was that the sentencing judge erred in failing to ‘take into account [DM’s] moral culpability in assessing the objective seriousness of this offence’. For the reasons addressed above, the proposition that an assessment of moral culpability informs or is part of the assessment of the objective seriousness of the offence is rejected.”

138. The relevant principles derived from DS v R; DM v R can be summarised as follows:

1. The “objective seriousness” of an offence and the “moral culpability” of the offender are “two separate but related concepts”. The former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender’s moral blameworthiness for the offence: DS v R; DM v R at [64] citing Paterson v R [2021] NSWCCA 273 at [29] per Beech-Jones CJ at CL with whom R A Hulme and N Adams JJ agreed.

2. References to moral culpability being “reduced” means reduced by reference to the moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence: DS v R; DM v R at [91]. This corresponds with what Beech-Jones CJ at CL observed in Paterson v R at [31], namely, that the moral culpability of an offence includes a consideration of the objective seriousness of the offence because that is what the moral blameworthiness is being assessed against.

3. “Objective seriousness” and “moral culpability” are not statutory phrases and the discussion of them is not meant to burden sentencing judges but rather “to assist them by inviting, and to an extent requiring, them to determine the seriousness of the offence and how much moral blame the offender bears, but only as part of a consideration of the weight to be attached to the various sentencing factors and for the purpose of undertaking the instinctive synthesis described in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25: DS v R; DM v R at [92]-[93].

4. Although the Court rejected the suggestion that an assessment of moral culpability forms part of the assessment of objective seriousness, it was accepted that an offender’s mental condition “may” affect an assessment of the objective seriousness of an offence in limited circumstances. The Court explained this at [95] and [96] as follows:

“[95] In relation to moral culpability, it has long been accepted that ‘[w]here the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced’ (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as ‘a’ causal connection, but it need not be the direct or precipitating cause (see Moiler v R [2021] NSWCCA 73 at [59] per Button J with whom Basten JA and Davies J agreed) (emphasis added).

[96] It follows that an offender’s mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment ‘may’ affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is ‘a’ causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.”

139. The principles derived from DS v R; DM v R have been cited and followed in numerous cases since that time, including in NKv R. The sentencing judge cited DS v R; DM v R in his reasons along with two other decisions which have applied the principles derived from it in different factual contexts: Camilleri v R  and R v Eaton. Given his Honour’s reliance upon those decisions as authority for the course he took, I propose to consider those two cases as well.

140. Camilleri v R concerned a mentally ill woman who killed her mother in particularly vicious circumstances. She was charged with murder but convicted of manslaughter on the basis of substantial impairment under s 23A of the Crimes Act. The starting point for her sentence (before a discount for an offer to plead guilty) was 24 years imprisonment as against the maximum penalty of 25 years imprisonment. In her application for leave to appeal against sentence, one of the grounds she relied upon was error in the finding of objective seriousness.

141. In allowing the appeal Hamill J (with whom Cavanagh J agreed; Adamson JA in dissent) cited the relevant passages in DS v R; DM v R and confirmed that an assessment of the seriousness of the offending and the moral culpability of the offender are separate but related steps: at [135]. His Honour went on, in reliance on DS v R; DM v R, at [96] to observe that “[a] mental impairment may affect an assessment of the objective seriousness of an offence where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving substantial impairment”. His Honour then went on to observe the following at [142]:

“… it is correct that in dealing with an offence of manslaughter following a plea of guilty or verdict based on a finding or acceptance of substantial impairment, the sentencing judge should not diminish the role played by an offender’s cognitive or neurological impairment or mental illness. Those matters remain relevant to the sentencing exercise both in terms of their impact on a proper assessment of the objective criminality and on the way in which the offenders diminished moral culpability feeds into the purposes of punishments and sentencing factors.”

142. Thus, it can be seen that Camilleri v R is one of the rare instances described in DS v R; DM v R at [94]-[96] where the factor of a mental health condition or intellectual impairment may be relevant to the assessment of both objective seriousness and moral culpability. But Camilleri v R is not authority for the different proposition that any finding of reduced moral culpability leads to a finding of reduced objective seriousness.

143. R v Eaton was a Crown appeal in which the court (Hamill J with whom Lonergan and Ierace JJ agreed) upheld a ground of appeal which contended, inter alia, that the sentencing judge had acted on a wrong principle when finding that the respondent’s subjective case reduced the objective seriousness of the offence.

144. The respondent to the Crown appeal had pleaded guilty to a count of negligent navigation contrary to s 52B of the Crimes Act. She had got into a single person kayak with a four-year-old child and a dog whilst highly intoxicated. Neither she nor the child were wearing life jackets. She then navigated the kayak away from the shoreline. The kayak capsized. The child drowned. The respondent made it back to the shore but could not remember how the kayak capsized or the victim drowned. She was found to be under the influence of alcohol and her blood and alcohol content was tested to be 0.250g/ml and 0.240g/ml.

145. The respondent was a 35-year-old Indigenous woman at the time of the offence. Her parents had divorced when she was seven years old. She was exposed to domestic violence and excessive alcohol use between her mother and her stepfather. She was neglected and emotionally abused by her mother. She moved in with her boyfriend at the age of 15 and experienced physical and verbal abuse from him. She had poor attendance at school and suffered from bulimia. Her mental health problems impacted on her ability to maintain employment.

146. At the time of the offending, the respondent was suffering from depression and anxiety, both in the severe range, and a bipolar affective disorder. The sentencing judge noted the bipolar disorder, and that the respondent’s medication for liver failure may have impaired her judgment and contributed to her decision to drink so heavily the night before the offence. The sentencing judge went on to make the following finding of objective seriousness (at [47]):

“… when I look at Ms Eaton’s level of inexperience in using the kayak, the degree of irresponsibility in agreeing to navigate the kayak with the small child and dog in it at the time, the fact that [the young child] was not wearing a life jacket and could not swim, I find that in all the circumstances, including the reductions in moral culpability for the subjective facts that I have mentioned, her culpability for the offence is in the mid-range of objective seriousness.” (emphasis in original)

147. In upholding ground 1, Hamill J noted at [45] the “vexing” issue of the interplay between objective seriousness and the “[s]eparate but related” concept of “moral culpability” as well as the “subsidiary controversy” of the extent, “if any”, to which matters personal to an offender might impact on the proper assessment of the objective seriousness of an offence. His Honour confirmed at [46] that in DS v R; DM v R this Court “explained authoritatively the way the concepts interact although there remains room for debate about the way the principles operate in particular cases and factual circumstances”: at [46]. His Honour went on to say this at [49]:

“While it is correct to say that there are occasions where matters personal to an offender may impact on the assessment of objective gravity, those occasions require more than a simple or indirect causal connection between the relevant subjective feature of the case and the offending. The argument put by the respondent here is that the respondent’s manifest difficulties – her traumatic and deprived childhood and her mental health issues – led to her alcohol dependence and, in turn, to her dreadful and reckless offending. While I accept, as the sentencing Judge accepted, that this had a substantial and profound impact on her moral culpability, I am unable to accept that it impacted on the objective criminality of her conduct and its consequences.”

148. As his Honour noted, this conclusion is consistent with the approach taken by the High Court in both Muldrock and Bugmy. Although his Honour accepted at ([48]) that Muldrock was concerned with, inter alia, the proper application of standard non-parole periods, it was emphasised in Muldrock at [27] that:

“Meaningful content cannot be given to the concept [‘the middle of the range of objective seriousness’] by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

149. Hamill J went on in R v Eaton to observe that nothing in Bugmy supports the conclusion that the diminution in moral culpability led to, or was mirrored by, a reduction in the objective gravity of the offender. Further, in Munda the Court said this at [57]:

“The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending.”

150. Finally, it should be noted that Hamill J’s statement (at [49]) of R v Eaton that, “[t]here are occasions where matters personal to an offender may impact on the assessment of objective gravity”, is taken from DS v R; DM v R at [64], citing Paterson v R at [29]-[31], which in turn cited the following observation of Johnson J (with whom Payne JA and Simpson AJA agreed) in Tepania v R [2018] NSWCCA 247; 275 A Crim R 233 at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

151. It is this passage from Tepania v R which the Court in DS v R; DM v R relied upon (at [94]-[96]) in holding that there may be some cases where the factor of mental health could be relevant to an assessment of objective seriousness.

152. With these principles in mind, the passages of the sentencing judge’s reasons relevant to the separate findings of moral culpability and objective seriousness are as follows.

153. At [42], the sentencing judge observed (correctly) that:

“The objective seriousness of this offence must be assessed without reference to matters personal to DG. It is to be determined wholly by reference to the nature of the offending.”

154. At [48], his Honour assessed the objective seriousness as falling “above the midrange of objective seriousness”. No challenge was made to that discrete finding in this Court.

155. At [49], his Honour then went on to note that he had reduced the applicant’s moral culpability “to a considerable degree”. No challenge was made to that discrete finding in this Court either.

156. At [54], his Honour observed that the applicant’s powerful subjective case went directly to “issues of moral culpability, childhood deprivation and as a consequence, the reduction in objective seriousness”. If by this his Honour meant that his finding of reduced moral culpability led to a reduction in objective seriousness, then it is not a correct statement of principle for the reasons outlined above.

157. At [76], under the heading “Moral Culpability”, his Honour cited the decision in DS v R; DM v R as authority for the proposition that in “some rare cases” a mental health issue may affect both an assessment of moral culpability and objective seriousness. That statement reflects what the court in DM v R; DS v R stated at [95]-[96] which I have extracted above at [138(4)]. His Honour then went on to state that this at [76]-[77]:

“[76] … However, more than a simple or indirect causal connection between the relevant subjective feature and the offending is required before objective seriousness is reduced.

[77] The nature of the impairment, the nature and circumstances of the offence and the degree of connection between them must all be considered. In such a case, the objective seriousness of the offence might be reduced substantially because the conduct was neither planned nor premeditated.” (Emphasis added.)

158. There was no suggestion by the Crown before the sentencing judge that the offence was planned or premeditated. The only dispute at the hearing was whether an absence of planning could be established on the balance of probabilities as a mitigating factor given the inconsistent and inadequate accounts provided by the applicant. Further and in any event, a lack of planning is an objective factor on sentence and not a matter personal to an offender. To the extent that the applicant argued on this appeal that it was open to the sentencing judge to find, as a mitigating factor, that the offence was unplanned, so much is to be accepted. But his Honour appears to have gone beyond simply accepting the submission made on behalf of the applicant that he would find on the balance of probabilities that the offending was unplanned as a mitigating factor, and made a finding that the objective seriousness of the offence was reduced due to the applicant’s reduced moral culpability.

159. At [81], after setting out the applicant’s subjective case and noting, correctly, that no causal connection is needed to reduce moral culpability on Bugmy factors, his Honour went on to state:

“However, if the offender’s childhood deprivation is also to lead to a reduction in the objective gravity of an offence there does need to be such a link.”

160. The sentencing judge cited the decisions in Camilleri v R and R v Eaton as authority for this proposition at [81]. Neither of those decisions suggested that an offender’s childhood deprivation can lead to a reduction in the objective gravity of an offence. As noted above, DS v R;DM v R is authority for the proposition that there will be cases, albeit rare, where an offender’s mental health or intellectual disability may be relevant to the assessment of objective seriousness. The two examples provided in DS v R;DM v R (at [96]) are where the mental impairment is “effectively” a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act (as was the case in the subsequent appeal in Camilleri v R) or, for example, where “an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence”. An example of a case where an offender’s intellectual disability might be relevant to the assessment of the objective seriousness of the offence would be if it precluded a finding of planning being made. Another example might be if it was capable of reducing the mental element of that offence to recklessness.

161. None of the decisions in Tepania v R, Paterson v R, or DS v R; DM v R addressed the question of whether the objective seriousness of an offence should be reduced by taking into account Bugmy factors. Nor have I been able to find a case in which such a finding has been made (including R v Eaton). That is not to preclude the prospect that such a case may arise for consideration in the future; simply that the question has not been considered thus far, including in either Bugmy or Munda.

162. His Honour then went on at [82] to find a “causal link” between the applicant’s childhood deprivation and the objective criminality and her conduct and that the various factors described in that paragraph “all combined to create a loss of self-control which is directly responsible for the victim’s injuries”. To the extent that there is any doubt that the sentencing judge did in fact reduce the objective seriousness of the offending based on the appellant’s mental health and childhood deprivations his Honour went on to state this at [91]:

“Whilst I have found that the appellant’s mental health and childhood deprivations reduce her moral culpability and the objective seriousness of her conduct, it does not follow that the other matters in s 3A do not still have a role to perform.” (Emphasis added.)

163. There are a number of difficulties with his Honour’s findings at [81], [82] and [91].

164. First, the cases cited by his Honour are not authority for the proposition that a childhood of deprivation can reduce the finding of objective seriousness (as opposed to moral culpability).

165. Secondly, it was at no time suggested to the sentencing judge that the objective seriousness of the offending could be reduced due to anything raised in Ms Elwidge’s report. All of the submissions, both oral and in writing, were directed to a finding of reduced moral culpability. Nor did his Honour foreshadow he would make such a finding.

166. Thirdly, to the extent that his Honour relied on the applicant’s mental health factors (as opposed to Bugmy factors) to reduce the finding of objective seriousness, there was insufficient expert evidence before the court to make such a finding. It seems to be common ground that Ms Edwige is not a forensic psychiatrist. She is a psychologist whose area of expertise is presenting culturally appropriate reports of childhood disadvantage for, inter alia, Indigenous offenders. When the sentencing judge raised her lack of expertise to diagnose a mental health condition, the Crown prosecutor, fairly, indicated that she would not take the point because a person with the deprived background of the applicant would be likely to present with the symptoms described by Ms Edwidge. But that concession was made in the context of an anticipated finding of reduced moral culpability, as opposed to a finding of reduced objective seriousness on, inter alia, mental health grounds. The applicant’s circumstances were far removed from those in Camilleri v R.

167. Fourthly, given the contradictory and inadequate explanations for the offending provided by the applicant, there was simply no evidence upon which his Honour could be satisfied on the balance of probabilities (at [82]) that the explanation for the victim’s injuries was a loss of self-control as a result of her “complex mental health presentation, distress of the unfamiliar environment of Sydney, thousands of kilometres away from her country [and] being - to use her term – ‘grog sick’”.

168. Given the limited explanations for the offending by the applicant in the Agreed Facts and elsewhere, there was no evidence before the court that the applicant intentionally inflicted grievous bodily harm to the victim in the midst of a loss of self-control. The applicant did not provide any reliable account of the offending, including to Ms Edwige, that accounted for the constellation of injuries suffered by the victim. Any account she did give tended against a conclusion of a loss of self-control. Further, the sentencing judge was satisfied that the accounts given by the applicant sought to minimise what she actually did. In these circumstances, I am unable to accept the submission made on behalf of the applicant that it was open to the sentencing judge to find that a loss of self-control was directly responsible for the victim’s injuries and that this finding would not be disturbed on re-sentence.

169. For these reasons, I accept the Crown submission that the Court should not adopt two aspects of the sentencing judge’s assessment of objective seriousness on re-sentence: that it was reduced due to the finding of reduced moral culpability and that the explanation for the offending was a loss of control as a result of Bugmy mental health factors. Despite this, the applicant is to be re-sentenced on the basis that full weight should be given to her deprived childhood, that her moral culpability is significantly reduced and that the offence was not planned.

Re-sentence

170. The applicant filed an affidavit in the event of re-sentence. In it, she described her life at Dillwynia Correctional Centre. She is employed in “Logistics” and has been given a special “reader pen” which scans paper for her and reads out the words to help in her learning of English. Another inmate, who used to be a librarian, had also helped her to learn English. She described spending her time when she is not working listening to music, painting, eating dinner and talking with family on the telephone. She had recently seen her daughter for the first time since being incarcerated and “felt happy and sad to see her”. She described that it was difficult to see her family because it made her think of what she was missing out on.

171. The applicant did not challenge the findings made by the sentencing judge, apart from those relating to general deterrence. It was submitted that this Court would re-sentence the applicant to a sentence of imprisonment less than that imposed by his Honour. It was also submitted that more favourable findings would be made about the applicant’s prospects of rehabilitation.

170. Following the approach stated by Yehia J in NKv R, I adopt the sentencing judge’s findings that both the applicant’s background and her mental health issues operate to reduce the applicant’s moral blameworthiness for the offending. I have considered how that finding and the reason for it bear upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution and promotion of rehabilitation: DS v R; DM v R at [92]-[93].

171. Like his Honour, I am satisfied that less weight needs to be placed on the principle of specific deterrence. As for general deterrence, I have considered whether the applicant is a good vehicle for general deterrence. Given the finding of significantly reduced moral culpability and the joint position of the parties, I am satisfied that the applicant is not a good vehicle for general deterrence. Despite this, consistent with the High Court’s observations in Munda at [54], I am satisfied the sentence must reflect the need to protect the community and vindicate the dignity of the victim.

172. I have adopted the findings of the sentencing judge regarding special circumstances, that her mental health conditions will make her time in custody more onerous, that she is entitled to a 25% discount for the utilitarian value of her plea as well as the findings of remorse and impact of delay. As for the prospects of rehabilitation, although the applicant’s affidavit on re-sentence was promising, I would make the same finding as the sentencing judge did: the applicant’s prospects of rehabilitation are guarded.

173. I have synthesised all of the factors relevant to the sentencing of the applicant. Clearly, they pull in different directions for the reasons I have already explained. Although the applicant’s significantly reduced moral culpability would, in my instinctive synthesis, lead me to impose a sentence which is markedly lower than that which I would have imposed absent that background, the sentence I have arrived at is still slightly higher than that which was imposed by the sentencing judge.

174. Although the language of s 6 of the Criminal Appeal Act permits this Court to impose a sentence that is “more or less severe” than that imposed at first instance, it is not the practice of this Court to impose a more severe sentence. As I observed in RO v R [2019] NSWCCA 183 at [119] and [123], this Court usually reserves its decision, and judgment is delivered at a later date. The impracticality of reconvening the Court to give a “Parker” warning (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282) if a conclusion is made that a “more severe” sentence is warranted in law means that the usual practice in those circumstances is to dismiss the appeal.

Orders

177. Accordingly, I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

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Amendments

08 September 2025 - [41], [48(3)] - "applicant" instead of "offender"

[172] - word "offender's" deleted

[173] - "significantly" instead of "significant"

08 September 2025 - [121] formatting change

Decision last updated: 08 September 2025