R v A (No 5)

[2015] NSWSC 670

Supreme Court

New South Wales

Medium Neutral Citation:	R v A (No 5) [2015] NSWSC 670
Hearing dates:	29 May 2015
Date of orders:	09 June 2015
Decision date:	09 June 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	The offender is convicted. The offender is sentenced to a non-parole period of 2 years and 3 months imprisonment commencing on 26 June 2013 and ending on 25 September 2015, with an additional term of 2 years and 3 months imprisonment, commencing on 26 September 2015 and ending on 25 December 2017. The total term of imprisonment is one of 4 years and 6 months. The offender will be eligible for parole on 26 September 2015 and her sentence will expire on 25 December 2017.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Briouzguine v R [2014] NSWCCA 264 Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 Iskandar v R [2013] NSWCCA 235 R v A (No. 2) [2015] NSWSC 76 R v Christoff [2003] NSWCCA 52; (2003) 38 MVR 218; (2003) 140 A Crim R 45 R v Engert (1995) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 R v Fidow [2004] NSWCCA 172 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Foster (No 2) [2001] SASC 154 R v Isaacs (1997) 41 NSWLR 374 R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 R v Sam; R v Sam [2011] NSWCCA 36 R v Tuuta [2014] NSWCCA 40 R v Wilkinson [1999] NSWCCA 248
Category:	Sentence
Parties:	Regina - Crown A - Offender
Representation:	Counsel: Mr C Maxwell QC - Crown Mr W Terracini SC - Offender Solicitors: Director of Public Prosecutions - Crown Kernaghan and Associates, Lawyers - Offender
File Number(s):	2013/194634
Publication restriction:	Nil

Judgment

INTRODUCTION

1. On 2 February 2015 the offender pleaded not guilty to an indictment alleging that between 30 July 2012 and 3 August 2012, at Berkeley in the State of New South Wales, she did unlawfully kill her son, to whom I shall refer as “Z”.

2. Z was 2 years and 7 months of age at the time of his death.

3. On 26 February 2015 the offender was convicted by a jury. I heard submissions on sentence on 29 May 2015.

THE OFFENCE OF MANSLAUGHTER

4. Manslaughter is an offence contrary to s. 18(1)(b) of the Crimes Act 1900. It carries a maximum penalty of 25 years imprisonment. The maximum penalty provides a sentencing yardstick because it represents the legislature’s assessment of the seriousness of the offence: Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]. However, careful attention to the maximum penalty does not mean that it will necessarily play a decisive role in the final determination of an appropriate sentence, and the sentencing discretion should not be constrained by the maximum penalty to the extent that an inappropriately severe sentence is imposed upon an offender: Elias (supra) at [27].

5. Moreover, the imposition of the maximum penalty for any offence is a sentencing option which is reserved for cases which can properly be categorised as falling within the worst category of cases for which such a penalty is prescribed: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-452. It was not suggested by the Crown that the present case fell into such a category.

6. Finally, it must be recognised that manslaughter is almost unique in its protean character. It may vary greatly in its objective gravity and the degree of variation within particular categories is generally also very wide: R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]-[134].

THE CIRCUMSTANCES OF THE OFFENDING

The necessity to find facts consistent with the verdict of the jury

7. For the purposes of determining an appropriate sentence, I am required to make findings of fact in relation to the circumstances of the offending. Any such findings must be consistent with the jury’s verdict. In particular, I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is inconsistent with it: R v Isaacs (1997) 41 NSWLR 374. The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation on the balance of probabilities.

Events leading up to Z’s death

8. In 2012 the offender resided with her partner (P) along with Z and her two other children. On 25 July 2012 the offender stabbed herself with a knife following an argument with P. She was admitted to hospital where she remained until her discharge on 30 July 2012. Evidence was adduced at the trial that in the period leading up to the offender’s admission to hospital, allegations were emerging regarding the sexual assault of the offender at the hands of her stepfather when she was a young girl. I have referred to this issue in greater detail when considering the offender’s subjective case.

9. On the weekend prior to his death Z was in the care of his father, the offender’s former partner (K). K gave evidence at the trial and described Z as appearing to be in “perfect health” during that weekend. He said, in particular, that he noticed no bruising to Z and that Z did not complain of pain.

10. On 29 July 2012 P collected Z and took him home. According to P, who also gave evidence at the trial, Z “seemed okay” when he collected him. He said that over the ensuing days Z was vomiting and “a little tired” but that despite this he “honestly thought that (Z) had … a gut bug”.

11. P maintained in his evidence that Z “didn’t look that ill”. However, he also said that by 2 August 2012, the day prior to Z’s death, Z had not eaten for four days. He said that although Z seemed “a little bit lethargic” he had no temperature, was not complaining of any pain and “seemed (to have) good colour”.

12. On 2 August 2012 the offender had an appointment with her General Practitioner, Dr Lee, for the purposes of follow-up after her discharge from hospital. She took Z to be minded by K so that she could attend the appointment. When the offender saw Dr Lee on that day, she made an appointment for him to see Z on 6 August, some four days later. Dr Lee gave evidence at the trial that the offender had told him that she had intended to bring Z to the appointment on 2 August but because he had been asleep when she left home, she had decided not to wake him. That explanation runs contrary to the fact that the offender took Z to K’s premises so that she could attend the appointment with Dr Lee. K described Z as looking “very sick” when the offender brought Z to him on that day, as a consequence of which he put Z to bed. The offender returned to collect Z about 2½ hours later. K gave evidence that he suggested to the offender that she should take Z to the doctor because he did not look well. Z was taken home.

Z’s death

13. At about 4:20pm on 3 August 2012 ambulance officers were called to the offender’s premises. P indicated to the ambulance officers that Z had been asleep for some hours and had been ill over the preceding days. Z was taken to hospital by ambulance. Attempts to resuscitate him at the hospital failed. He was pronounced dead at 5:49pm on 3 August 2012.

14. At the hospital, the offender told medical staff that Z had been unwell for a few days but that he had seemed better that morning. She said that she had put him down for a sleep at about 12:30pm and that she found nothing of concern when she checked on him approximately one hour before the ambulance was called. The offender said that she had then checked on Z at about 4.20 pm and found that he was not breathing. On further questioning from medical staff, the offender said that Z had been vomiting over the previous few days and had appeared lethargic.

15. The offender’s premises were searched by the police. In the course of that search police located a quantity of “Ferro” liquid (used for the treatment of iron deficiency in children) along with a quantity of “Dimetapp” which is a medication used to treat flu-like symptoms. There was also evidence before the jury that between Z’s birth in December 2009 and his death on 3 August 2012, he had been taken to local Medical Centres for consultation and treatment on more than 30 occasions. There were other occasions during that period when Z had been taken to Wollongong Hospital for the same purposes.

Z’s injuries and the cause of death

16. Dr Duflou, a Forensic Pathologist, conducted an autopsy of Z over a period of three days commencing on 4 August 2012. X-rays of Z’s body taken prior to the autopsy revealed a number of fractures, including fractures of three ribs on the left side, both radii, the left clavicle and the left scapula. Dr Duflou gave evidence that it was difficult to ascribe an age to any of those fractures. There was evidence that at least some of them could have been occasioned weeks before Z’s death.

17. External examination of Z revealed:

1. bruising to the jawline and the scalp;

2. grazing to the right temple region;

3. grazing on the bridge of the nose and the right nostril;

4. bruising on the lower abdomen wall;

5. bruising on the left front of the chest, the tip of the right elbow, the right forearm and the right little finger;

6. healed scratch marks on the back of the right hand; and

7. a healing graze on the right index finger.

18. Examination of Z’s head revealed recent bleeding over the surface of the brain. Dr Duflou detected two subdural haemorrhages, one of which was fatal. These injuries were consistent with the infliction of blunt force trauma to the head on multiple occasions.

19. Dr Duflou also detected a large collection of fluid in Z’s abdominal cavity. He diagnosed peritonitis resulting from a forceful blow to, or significant compression of, Z’s abdomen. There was associated damage to the pancreas and the bowel. Although Dr Duflou concluded that the head injury was the ultimate cause of Z’s death, he regarded the peritoneal condition as a contributing factor.

20. It is important to emphasise at this point that it was no part of the Crown case against the offender that she was responsible for inflicting any injury upon Z. It was also no part of the Crown case that the offender was present when any injury was inflicted on Z, or that the offender otherwise had any knowledge of the circumstances of infliction of any injury. The Crown case, which the jury accepted, was that Z’s appearance in the days leading up to his death was that of a child who was obviously very ill and who, equally obviously, required medical attention which the offender failed to provide to him. In this regard, the Crown relied upon evidence given by a number of medical practitioners as to the symptoms which would be expected to have been exhibited by a child with Z’s injuries.

21. Dr Duflou gave evidence that:

1. it was unlikely that a child with such injuries would appear normal and uninjured 24 hours prior to his death;

2. a child suffering from peritonitis is obviously desperately ill;

3. typical presentation of a child with peritonitis may be characterised by the child holding and guarding the abdomen, and appearing “seriously off colour”;

4. a child with Z’s head injuries would be expected to be in pain, and would be likely to exhibit symptoms of drowsiness, vomiting and unsteadiness; and

5. it was unlikely that a child with Z’s injuries would have appeared normal.

22. Dr Piper, a specialist paediatrician who was called in the Crown case, gave evidence that:

1. a child suffering from peritonitis would present with very significant symptoms, including severe abdominal pain, which would make the child restless and reluctant to move; and

2. symptoms of peritonitis would usually include a rigid abdomen, resistance to (and tenderness on) abdominal palpation, an appearance of being unwell, a loss of appetite, and finally nausea.

23. Dr Marks, also a specialist paediatrician called in the Crown case, gave evidence that:

1. a child subjected to the type of head trauma found to have been suffered by Z would experience a loss of consciousness, or would appear to be in a state of consciousness which was different to his or her normal appearance; and

2. clinical signs of an impaired level consciousness in a two and a half year old child should have been readily apparent to his immediate carers.

24. Dr Martin, a paediatric and burn surgeon who was also called in the Crown case, gave evidence that:

1. symptoms of peritonitis include pain, a pale complexion, a lethargic and febrile presentation, vomiting, a disturbance of bowel function and a loss of appetite; and

2. a carer should be able to detect that a child with peritonitis is unwell 8 – 12 hours after its onset.

25. Part of the defence case at trial was that at least some of the symptoms of peritonitis were not markedly different to those which might be expected to be exhibited by a child with a far less serious illness, such as a gastric virus or infection. There was some support for that proposition in the medical evidence. For example, Dr Martin did not disagree with it, although he stressed that there would be a difference in the degree of symptoms which were exhibited by a child with peritonitis on the one hand, and a gastric infection on the other. Dr Duflou also accepted that although diarrhoea was a symptom of peritonitis, it was also consistent with a number of other conditions. He also accepted that the head injuries to Z which had been found on post mortem examination did not exhibit any external bruising or swelling, such that they would have been readily observable.

26. Despite such evidence, it is clear from the verdict that the jury accepted the Crown case that Z’s appearance in the days leading up to his death was such as to alert the offender that his state of health was sufficiently serious to warrant medical help, and that in breach of her duty of care towards Z she failed to provide it.

27. Prior to the trial, the Crown had indicated that it proposed to lead context evidence of what was said to be the offender’s general neglect of Z, in order to rebut a submission to the effect that the offender was generally a “good mother”. I concluded that such evidence was admissible: R v A (No. 2) [2015] NSWSC 76. In the course of reaching that conclusion, I set out in full the evidence which the Crown indicated at that time that it proposed to lead.

28. The nature and extent of the evidence which was ultimately adduced by the Crown in this regard was far more limited than what was originally foreshadowed. It included evidence of the offender’s house being in an untidy state shortly after Z was born, observations of Z having a dirty nappy and a runny nose on some occasions, a failure on the part of the offender to respond to Z crying on an occasion in December 2011, and an incident when Z fell down a set of outside steps when the offender was not at home. Some of the witnesses who gave that evidence agreed that they had observed Z to be generally outwardly happy, and to be a child who had a good relationship with the offender.

Conclusions as to the circumstances of the offending

29. The evidence does not permit me to make a precise determination of the nature and extent of the entirety of the symptoms that Z was displaying in the days leading up to his death. Necessarily, the various medical opinions to which I have referred were expressed in terms of the symptoms which a child with Z’s injuries would have been expected to exhibit. However the evidence of P, which I accept, is that in the period leading up to his death Z had been vomiting, was generally lethargic, and had not eaten for several days.

30. I am satisfied that Z’s outward presentation between 30 July 2012 and 3 August 2012 was that of a child who was clearly unwell and in need of medical treatment. The offender failed to obtain that medical treatment and in doing so, breached her duty of care to Z.

31. The offender made an appointment for Dr Lee to see Z on 6 August. However, I am satisfied that it had been open to the offender to take Z to Dr Lee when she herself saw him on 2 August, which was the day prior to Z’s death. Her explanation to Dr Lee for not doing so, namely that she did not want to wake Z, does not sit comfortably with the fact that she had taken Z to be minded by his father so that she could attend the appointment.

32. However I am not satisfied that when the offender collected Z after attending the appointment with Dr Lee, K specifically suggested to her that Z should be taken to a doctor. K admitted when giving evidence that he has suffered from chronic schizophrenia for more than 25 years, the diagnosis of which stemmed from a history of thinking that people were going to kill him. For this reason, as well as a number of others, I formed the view that K was not a reliable witness.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

Submissions of the offender

33. Senior counsel for the offender acknowledged that any offence involving the death of a young child was obviously serious. However he submitted that the extent of a particular offender’s criminality necessarily depended upon the circumstances of the individual case. In the present case he pointed to the following circumstances in support of the conclusion that the objective seriousness of the offending was at the lowest end of the scale:

1. the failure of the offender to obtain medical treatment was limited to a period of days, and was not ongoing;

2. there was no evidence that the offender was present when any injury was inflicted upon Z, or was otherwise aware of the circumstances in which, or the person by which, such injuries were inflicted;

3. the symptoms exhibited by Z were, at least to some degree, consistent with those which would be expected in the case of less serious illnesses;

4. although the offender had breached her duty of care, she had not totally abandoned her responsibility and had in fact made an appointment for Z to be examined by Dr Lee;

5. there was no evidence of malnutrition or other mistreatment of Z;

6. there was evidence of medications found in the search of the offender’s premises which, by inference, had been administered to Z; and

7. there was a history of the offender having consistently provided medical treatment for Z when necessary.

34. Finally, senior counsel submitted that the offending had taken place during an extremely traumatic period in the offender’s life, which had seen the emergence of allegations of sexual assault made against her stepfather, and which culminated in the offender self-harming only a matter of days prior to Z’s death.

Submissions of the Crown

35. The Crown expressly acknowledged that it was not alleged that the offender was responsible for Z’s injuries, that she was present when they were sustained, or that she otherwise had any knowledge of such matters.

36. However, it was emphasised that the jury had obviously accepted the Crown case that the offender had omitted to obtain necessary medical treatment for Z and had, in doing so, breached the duty of care that she owed to Z as his mother. The Crown submitted that inherent in the jury’s verdict was a finding, beyond reasonable doubt, that the offender’s omission to obtain treatment for Z constituted such a significant departure from the standard of care which a reasonable person would have exercised, that it merited criminal punishment.

37. The Crown submitted that the relevant omission was not isolated, but had in fact extended over some days during which Z was obviously ill. It was submitted that the fact that the offender was able to attend upon Dr Lee herself on 2 August 2012, along with the fact that she was able to arrange an appointment for Z, were indicative of the ease with which medical treatment was able to be arranged.

38. The Crown placed some emphasis on the fact that by virtue of his age, Z was vulnerable. It was submitted that this was an aggravating factor having regard to the provisions of s. 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”). The Crown also submitted that factors such as the offender’s episode of self-harm were of little relevance to an assessment of the objective seriousness of the offence. This, it was submitted, was because factors of that nature were necessarily taken into account by the jury in determining the standard of care which would have been exercised by a reasonable person in the position of the offender.

35. In all of these circumstances, the Crown submitted that the offender had significantly breached her duty of care. It was submitted that the most important trust for which any person had responsibility was that reposed in a parent by his or her child. It was submitted that as a consequence, there was a heavy responsibility resting upon any parent to care for a child who was otherwise defenceless.

36. Ultimately, the Crown submitted that the offending was “around the middle range of objective seriousness”.

Consideration and conclusion

41. There was no issue at the trial that the offender had omitted to obtain medical treatment for Z between 30 July 2012 and 3 August 2012. Similarly, there was no issue that the offender owed a legal duty of care to Z and that such duty of care had been breached. The real issue before the jury was whether or not the offender’s breach amounted to criminal negligence. The defence case centred around the fact that some of the symptoms exhibited by Z were consistent with illnesses of less seriousness. It is evident from the verdict that the jury rejected that case, and concluded that in all of the circumstances the offender’s failure to obtain medical treatment for Z fell so far short of the applicable standard of care that it amounted to gross negligence.

42. The period of the offending followed almost directly upon the offender’s hospitalisation following an episode of self-harm. As I have noted, the Crown submitted that because this was one of the personal circumstances of the offender which the jury were directed to take into account in determining whether the offence had been established, it was largely irrelevant on sentence. I am not able to accept that submission. In my view, it is a factor which remains relevant in determining the seriousness of the offending. However even when allowance is made for it, the fact remains that Z was clearly unwell in the days leading up to his death and that the offender was in a position to directly observe his appearance, condition and behaviour in that period. I am satisfied that it must have been apparent to the offender that Z was ill and in need of medical attention. That medical attention could have been obtained, be it from a medical practitioner such as Dr Lee or from a public hospital, without any real difficulty.

43. There is a heavy and enduring responsibility resting upon a parent to care for a child who is otherwise utterly defenceless: R v Deaves [2013] NSWSC 1359 at [57] per Rothman J. That is a factor which is relevant to an assessment of the objective seriousness of the offending. However, I am not able to accept the Crown’s submission that the vulnerability of Z, by virtue of his age, should be regarded as an aggravating factor under s. 21A(2)(l) of the Sentencing Act. In Deaves (supra) Rothman J said (at [58]-[59]):

“[58] The duty that is owed and from which criminal responsibility arises is present in the relationship between any parent and a child under the age of 18. Where, as here, the child is wholly dependent upon the parent and incapable, even in the most basic manner, to fend for herself, the culpability involved in breaching the duty of care is serious and the responsibility that rests upon such a parent in those circumstances is a heavy one.

[59] That factor is primarily a factor to be taken into account in determining the criminal culpability of the offender from an objective perspective. It cannot, as well, form the basis for an aggravation of the offence under s. 21A(2)(l) of the Sentencing Act. That the provisions of s. 21A(2)(l) of the Sentencing Act do not apply to aggravate the offence does not detract from the significance of such a factor in relation to the assessment of objective seriousness of the offence committed”.

44. The context evidence which was adduced by the Crown (to which I referred at [27] and [28] above) was, in my view, of limited probative value. Of substantially greater probative value in this regard was the evidence of Dr Duflou, who said that there was no indication that Z was malnourished or dehydrated. In addition there was, as I have noted, evidence that since Z’s birth, medical treatment had been obtained for him when he required it. Dr Lee gave evidence that on the majority of occasions on which he had treated Z during the course of his life, it was the offender who brought Z to the surgery. Medications found in the offender’s premises when they were searched were also consistent with providing medical assistance to a child.

45. Clearly, the verdict of the jury represents an acceptance of the Crown case that the offender failed to discharge the important responsibility which was placed upon her as Z’s mother. The seriousness of that failure needs no further comment. However on the whole of the evidence, I am satisfied that generally speaking, the offender was otherwise appropriately attentive to Z’s needs. To that extent I am satisfied that the offending behaviour was aberrant.

46. Finally, whilst I accept that the offending cannot be properly described as isolated, it was committed over a period of days as opposed to weeks or months. There is no suggestion that the offender made a deliberate decision not to seek medical help for Z. Moreover, this is not a case where there was a total abandonment of responsibility on the part of the offender. So much is clear from the fact that the offender did make an appointment for Z to see Dr Lee, albeit at a stage which proved to be far too late.

47. In all of these circumstances, I am unable to accept the Crown’s submission that the objective seriousness of the offending falls at about the mid-range. In my view, it falls substantially below that.

THE OFFENDER’S SUBJECTIVE CASE

The evidence

48. The following documentary evidence was tendered in the offender’s case:

1. a report of Dr Jonathon Adams, Forensic Psychiatrist, of 19 February 2015;

2. a further report of Dr Adams of 7 May 2015;

3. an affidavit of the offender’s mother (to whom a shall refer as DT) dated 14 May 2015; and

4. an affidavit of P dated 15 May 2015.

49. Other than those parts of the first report of Dr Adams which detailed an account given by the offender as to the circumstances of the offending, the Crown did not object to any of this evidence and did not seek to cross-examine DT or P on the contents of their respective affidavits.

50. The offender, who identifies as indigenous, was born on 20 May 1981 and is now 34 years of age. She has been in custody since her arrest on 26 June 2013. She has no criminal history.

51. In her first interview with Dr Adams, the offender described having experienced a deteriorating emotional state from the age of about 9½ years. It appears that this coincided with the time at which she commenced to experience physical, emotional and sexual abuse on a regular basis at the hands of her stepfather. That abuse became worse after the offender had turned 10 years of age.

52. The offender twice fell pregnant following sexual assaults by her stepfather, firstly at the age of 12 years, and again at the age of 13 years. On each occasion the pregnancy was terminated. The offender described her stepfather to Dr Adams as “controlling”. Apart from assaulting her, he regularly threatened her with reprisals if she informed others of his abuse of her.

53. The offender fell pregnant on two further occasions as the result of her stepfather’s sexual abuse, firstly at the age of 15 years, and again at the age of 16 years. On those occasions the pregnancies were not terminated, and resulted in the birth of the offender’s two sons, who are now aged 16 and 17.

54. I was informed in the course of the sentence proceedings that the offender’s stepfather has been charged with offences arising out of these matters and is to stand trial later this year. The offender has agreed to give evidence for the Crown.

55. The offender’s sons currently live with DT. The offender also has a 12 year old son and a 7 year old daughter from her relationship with K. Those two children are currently in the care of her brother’s former partner.

56. The offender’s relationship with K commenced when she was 19 years of age. It was characterised by ongoing physical abuse leading to her separation from him in 2010. The offender then commenced her relationship with P. Despite the fact that the offender has been in custody for almost 2 years, her relationship with P is, as discussed further below, an ongoing and apparently committed one.

57. In his first report dated 19 February 2015, which was compiled following an assessment made in the course of the trial, Dr Adams said:

“(A) provided an account of her prolonged and severe abuse history during childhood and adolescence, by her stepfather, involving repeated physical, sexual, and emotional abuse. Her account was consistent with the description her mother provided, and is also consistent with the additional collateral sources of information.

It is the environment that shaped A’s personality structure, attachment style, and coping strategies. A described from an early age her worsening emotional instability, emotional dysregulation (an inability to adequately control one’s emotional state), self-harming behaviour, self-esteem difficulties, and problems forming stable relationships. These are all features of a borderline personal structure.

It appears that through adolescence and progressing into adulthood A began to experience more persistent periods of low mood, in my opinion in keeping with recurrent major depression. She also described suffering prominent anxiety and the hallmark features of a posttraumatic stress disorder relating to her trauma history.

A recounted her turbulent adult years, characterised by a longstanding abusive relationship, lack of stable supports, and occasional misuse of alcohol and illicit substances. All of these factors would have compounded A’s mental health”.

58. Dr Adams was able to confer with Dr Sabbour, the Psychiatric Registrar at Justice Health, who confirmed the prescription of Citalopram (an anti-depressant medication) and Quetiapine (a mood stabiliser and anti-psychotic medication). Dr Sabbour described the offender’s mental health as “gradually improving”.

59. Dr Adams concluded that the offender was suffering from symptoms of depression, anxiety and post-traumatic stress disorder at or around the time of the offending. However, he reported that there was no evidence to suggest that her symptoms impacted upon her cognitive or decision-making capacity, so as to make available a psychiatric defence. Dr Adams concluded:

“At the time of my assessment in my opinion A continued to experience residual symptoms of depression, anxiety, and post-traumatic stress disorder, in the context of the stressful continuing legal process.”

60. Dr Adams assessed the offender for a second time on 2 May 2015 following the jury’s verdict. When asked by Dr Adams how she had reacted to the verdict the offender stated “not too well”. Dr Adams reported that the offender had told him that she was “angry” at the jury’s verdict because it “was not justice for (her) son …”. Although the offender later told Dr Adams that she could “understand the way society sees (the offence)” she nevertheless continued to express her “ongoing concerns” about the verdict. The offender told Dr Adams that following the verdict she had harmed herself superficially with a fork “to stop the pain (she) was feeling on the inside”. As a consequence, she was placed in a safe cell for three days.

61. Dr Adams recorded no significant difference in the offender’s mental state at the time of his second assessment. He reported:

“My opinion with regards A’s clinical presentation and diagnosis has not altered. I remain of the opinion that A suffers with a posttraumatic stress disorder, depression, and anxiety.

It is evident that A has continued to suffer with symptoms of posttraumatic stress disorder, depression, and anxiety since the outcome of the legal proceedings.

It is apparent that A is distressed by her continuing incarceration, particularly given her separation from her children, who she reported were affected by the guilty finding. Although it is positive that A reported her gradually improving mental state since the finding of guilt, which is consistent with the entries in the Justice Health medical record, it is clear that she continues to suffer with symptoms of mental illness. In my view her incarceration is compounding her mental health, and increasing the likelihood of ongoing symptoms of mental illness, particularly given the separation from her children and support network. There are several aspects required for A’s recovery that are not possible to address optimally in custody, including but not limited to, her adaptation to the loss of her son and how this has affected family relationships.

Whilst she remains incarcerated, in my opinion A’s prognosis is not favourable”.

62. The affidavit of DT confirms that she currently cares for the offender’s two eldest children. Although DT lives in Queensland, she visits the offender as her circumstances permit and to the extent that she is able to do so, she provides the offender with financial support. She also facilitates telephone contact between the offender and her two sons. DT has expressed her continuing support of the offender, both in the short term and in the longer term following her release.

63. P also confirmed his ongoing support for the offender in his affidavit. He generally visits the offender weekly, speaks with her on the telephone regularly and provides her with some financial support. P has stated that following discussions with the offender, it is their mutual intention that she live with him upon her release.

Submissions of the offender

64. It was submitted on behalf of the offender that the reports of Dr Adams outlined a personal history which was characterised by emotional stressors, undesirable relationships, substance abuse, sexual abuse and domestic violence. It was submitted that the evidence established that the offender suffers from significant mental health conditions including anxiety, depression and post-traumatic stress disorder.

65. Senior counsel further submitted that despite the offender’s plea of not guilty, and despite her statements to Dr Adams regarding the jury’s verdict, I should nevertheless conclude that she was genuinely remorseful. It was submitted that such remorse was evidenced by her behaviour after Z’s death (including the episode of self-harm which followed the jury’s verdict) as well as by various statements made by her when interviewed by police.

66. Senior counsel submitted that the absence of any criminal history was a mitigating factor under s. 21A(3)(e) of the Sentencing Act. Whilst he did not suggest that the offender’s indigenous heritage, per se, permitted me to conclude that her offending was less serious than what might otherwise have been the case, he submitted that the principles in R v Fernando (1992) 76 A Crim R 58 were applicable, and that I should have regard to the social and economic disadvantage to which the offender had been subjected, not only in her formative years but also later in her life. It was submitted that such circumstances provided some insight into her offending.

67. In terms of the offender’s prospects of rehabilitation, senior counsel pointed to a series of factors which, it was submitted, supported a conclusion that such prospects were favourable. These factors included:

1. the offender’s engagement with medical specialists whilst in custody;

2. her compliance with prescribed medication;

3. the availability of family support;

4. her expressed desire to remain engaged with mental health services and to maintain compliance with medication; and

5. the availability of a stable environment to which to return upon her eventual release from custody.

68. Senior counsel pointed, in particular, to that passage of Dr Adams’ report (at [61] above) concerning the adverse effect of the offender’s ongoing incarceration upon her mental health. It was submitted that whilst ever the offender remained incarcerated her prognosis was adversely affected. In these circumstances, senior counsel submitted that the offender’s mental illness rendered her conditions of custody more onerous.

69. It was further submitted that the evidence supported a finding of special circumstances, and that the factors supporting such a finding included:

1. the offender’s age;

2. the fact she is in custody for the first time;

3. her mental illness; and

4. the fact that she has received “significant self-punishment and shame” as a consequence of her son’s death.

70. Ultimately senior counsel submitted that when viewed overall, the present case should be regarded as exceptional because of the following considerations:

1. the limited period of the offending;

2. the otherwise attentive approach of the offender to Z’s needs;

3. the offender’s mental illness;

4. the offender’s strong subjective case including her deprived background, the absence of any criminal history and her favourable prospects of rehabilitation; and

5. the fact that the offender’s conditions of custody were rendered more onerous by her mental illness.

71. It was submitted that in all of these circumstances a sentence which effectively saw the offender’s immediate release from custody was appropriate.

Submissions of the Crown

72. The Crown conceded that the offender had no criminal history and accepted that this was a mitigating factor.

73. In terms of the offender’s suggested remorse, the Crown submitted that the statements made by the offender to Dr Adams indicated that she had not accepted responsibility for her actions. Whilst the Crown accepted that the offender might well be upset over the loss of her son, it was submitted that this was to be distinguished from an acceptance of responsibility and that I would not find that the offender was genuinely remorseful.

74. In terms of special circumstances the Crown submitted that the matters relied upon by the offender were not sufficiently “special” to justify such a finding. The Crown submitted that the appropriate sentence would be substantial in any event and that any parole period would be of sufficient length to serve its necessary purpose.

75. In written submissions, the Crown argued that in any circumstances, a conviction for manslaughter warranted the imposition of a substantial sentence so as to properly reflect the demands of punishment and the need for general deterrence. However the Crown went further, and submitted that the need for general deterrence in the case of the present offender was greater because of the need to deter those entrusted with the care of young children from abusing their positions of trust and power. It was submitted that as a general principle, Courts should extend the full protection of the law to vulnerable children by imposing sentences which will deter others, and that it was necessary for any sentence imposed upon the offender to be such as to convey the clear statement that offending of this nature will be dealt with severely. In support of this submission the Crown cited the decisions in R v Foster (No 2) [2001] SASC 154 and R v Sam [2011] NSWCCA 36.

76. The Crown further submitted that in the circumstances of the present case there was a need for any sentence to reflect considerations of personal deterrence, so as to make it clear to the offender that she had breached the most fundamental trust between human beings.

CONSIDERATION AND CONCLUSION

General and personal deterrence

77. Although there can be no issue as to the statement of general principle relied upon by the Crown (in [75] above) the two authorities which were cited involved far different, and substantially more serious, offending. In Foster (No. 2) the offending involved the infliction of a deliberate blow to the head of a young child. In Sam the offending involved a failure, over a period of some months, to administer medical treatment to a child, accompanied by a failure to follow medical advice which had been provided. It is not difficult to understand why offending of that nature might be regarded as a significant abuse of trust, nor is it difficult to understand why there is a need for sentences imposed in respect of such offending to reflect considerations of general deterrence. However in the present case, the Crown’s submissions fail to recognise the uncontradicted and unchallenged evidence that the offender is, and was at the time of the offending, mentally ill. The Crown’s submissions also tend to ignore the principles to be applied when sentencing mentally ill offenders.

77. In Engert v R (1995) 84 A Crim R 67 Allen J made a number of observations as to the relevance, on sentence, of a mental disorder where (as here) that disorder did not play a causative role in the offending. His Honour said (at 72):

“The Chief Justice has indicated that even in that circumstance the existence of the mental disorder can be relevant to general deterrence. The cases to which the Chief Justice has referred are all cases dealing with mental disorder of some sort, whether it be deficiency in intellect or some psychiatric disorder. However, the general principles of sentencing in relation to taking into account general deterrence are no different, in respect of mental disorder, than they are in respect of any other characteristic of an offender which might make it inappropriate that he receive a full measure of punishment which reflects the need for general deterrence.

General deterrence is simply the deterrence of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others".

79. In the same case, Gleeson CJ said (at 68):

“A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. 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”.

80. The decision in Engert was referred to by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 where his Honour set out (at 177; [43]) the principles applicable to the sentencing of mentally ill offenders.

81. As I have already noted, Dr Adams concluded that the offender’s mental state at the time of the offending did not impact upon her cognitive and decision making capacities. However even in the absence of such a connection, an offender’s mental illness may nevertheless be relevant to the issue of general deterrence: Engert (supra) at 72 per Allen J; Iskandar v R [2013] NSWCCA 235 at [30] per the Court.

82. I acknowledge, for the reasons explained by Gleeson CJ in Engert (at [79] above), that it would be erroneous to approach this issue on the basis that once the mental illness of an offender is established, it automatically follows that general deterrence assumes less importance. However in circumstances where this offender’s mental illness is both undisputed and serious, I can identify no basis upon which to decline to apply the principles applicable to the sentencing of mentally ill offenders which were set out by McClellan CJ at CL in De La Rosa (supra). His Honour articulated those principles (commencing at [177]) in the following terms:

[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].

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].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

83. In my view, the offender’s mental illness renders her an inappropriate vehicle for general deterrence. Moreover, in view of such illness and the offender’s lack of criminal history, considerations of personal deterrence are of little or no significance.

84. In light of all of the evidence I am satisfied that the offender is unlikely to re-offend. That is a mitigating factor under s. 21A(3)(g) of the Sentencing Act.

The absence of any criminal history

85. The offender has no criminal history. That is a mitigating factor under s. 21A(3)(e) of the Sentencing Act.

The offender’s upbringing

86. The circumstances of the offender’s upbringing (referred to by Dr Adams in that part of his report set out at [57] above) warrant the application of the principles discussed in Fernando (supra) and more recently in Bugmy v R [2013] HCA 37; (2013) 249 CLR 571. Those principles include the following:

1. the deprived background of an Aboriginal offender may mitigate the sentence that would otherwise be appropriate, in the same way that the deprived background of a non-Aboriginal offender may mitigate such sentence: Bugmy at [37];

2. the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of an appropriate sentence: Bugmy at [42]-[43];

3. the experience of growing up in an environment surrounded by (inter alia) violence may leave its mark on a person throughout his or her life. It is a feature of the person’s make-up and remains relevant to the determination of an appropriate sentence: Bugmy at [43].

87. I have applied these principles in determining the appropriate sentence. In particular, I am satisfied that the sexual abuse to which the offender was repeatedly subjected at the hands of her stepfather when she was young continues to leave its mark on her and has contributed to the mental illnesses from which she continues to suffer.

The offender’s remorse

88. Section 21A(3)(i) of the Sentencing Act provides that remorse shown by an offender is a mitigating factor, but only if the offender has:

1. provided evidence that he or she has accepted responsibility for his or her actions; and

2. acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

89. I am satisfied that the offender is upset as the result of Z’s death. I am also satisfied that she regrets the circumstances which led to it. However in my view, the offender’s statements to Dr Adams, particularly her reference to the verdict not representing justice for Z, demonstrates a failure on her part to accept responsibility for her actions. Being upset and expressing regret are a long way removed from the acceptance of responsibility to which s. 21A(3)(i) is directed. I am therefore not satisfied that the offending is mitigated by the offender’s remorse.

The offender’s prospects of rehabilitation

90. Assessing the prospects of rehabilitation of an offender is difficult for a number of reasons, not the least of which is that such assessment involves making a determination of matters into the future. However, having regard to the whole of the evidence, and to the matters relied upon by senior counsel for the offender (set out at [67] above) I am satisfied that the offender’s prospects of rehabilitation are favourable.

Special circumstances

91. I have set out (at [69] above) those matters relied upon by senior counsel for the offender in support of a finding of special circumstances.

92. The circumstances of an offender must be sufficiently “special” to justify such a finding: R v Fidow [2004] NSWCCA 172 at [22]. The fact that an offender is young, has a lack of criminal antecedents and is serving his or her first period in custody, all of which were relied upon in the present case, may not be sufficient to justify a finding of special circumstances: R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23; R v Christoff [2003] NSWCCA 52; (2003) 38 MVR 218; (2003) 140 A Crim R 45. In R v Tuuta [2014] NSWCCA 40, with the concurrence of Bathurst CJ and Hoeben CJ at CL, I said the following (at [57]):

“Circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]).”

93. In the second of his reports, Dr Adams stated the following:

“It is a positive indicator that A remains future orientated, and she has considered her eventual release from custody. In my opinion she will require substantial support from mental health, drug and alcohol, and social services upon her reintegration into the community.”

94. Although not expressly stated by Dr Adams, the inference is that providing the offender obtains the kind of support to which he referred, the signs are that rehabilitation is likely to be successful. This is particularly so in circumstances where there is evidence that the offender’s mental state is improving. Accordingly, I make a finding of special circumstances.

SENTENCES IMPOSED IN OTHER CASES

95. The Crown provided me with a schedule of sentences imposed in cases of manslaughter by gross criminal negligence between 1999 and 2014. In each case the victim was a child. Senior counsel for the offender referred me to other authorities which fell, generally speaking, into the same category.

96. Observations have been made on a number of occasions about the careful approach which must be taken when the Court is asked to compare one sentence with another. Consistency in sentencing is not demonstrated by numerical equivalence: Briouzguine v R [2014] NSWCCA 264 at [74] per Gleeson JA (Schmidt and Bellew JJ agreeing). The necessity to approach any such comparative exercise with care is rendered even greater in cases of manslaughter, given the range of culpability and circumstances: Deaves (supra) at [70].

97. The Crown cited the decision in R v Wilkinson [1999] NSWCCA 248 as one in which some of the characteristics of the offending were similar to those in the present case. As I understood it, the Crown pointed to that decision as being one which might provide some guidance as to the determination of an appropriate sentence in the present case. In Wilkinson the applicant had been sentenced to a minimum term of 3½ years imprisonment, and an additional term of 3 years imprisonment, having been found guilty by a jury of criminal negligence in failing to properly protect the well-being of her 6 month old son. The Court of Criminal Appeal dismissed an application for leave to appeal against sentence. Although, in a broad sense, the offending was similar to that in the present case, there were a number of differentiating features.

98. Firstly, there was evidence that the applicant was an inattentive and somewhat disinterested mother. The evidence in the present case is generally to the contrary. Secondly, the Court concluded that the applicant had compelling reasons to believe that the child was at risk of injury whilst he remained in the same household as the co-accused. That is not a characteristic of the present offending. Thirdly, there was evidence that the applicant had compounded her neglect by taking a prohibited drug whilst the child was ill, thereby further impairing her ability to care for him, or make sensible judgments in relation to his protection. Again, that is not a characteristic of the present offending.

99. In my view, no guidance as to the determination of an appropriate sentence in the present case is to be gained from the decision in Wilkinson. Indeed, that decision provides a good example of how cases differ, and why it is that a careful approach is to be taken to comparative exercises. Because of the wide ranging nature of this kind of offending, the authorities to which I was referred provide limited assistance. They most certainly do not establish a range within which a sentence should fall.

ORDERS

100. As previously noted, the offender has been in custody since 26 June 2013. There is no issue that any sentence should commence on that date.

101. I make the following orders:

1. The offender is convicted.

2. The offender is sentenced to a non-parole period of 2 years and 3 months imprisonment commencing on 26 June 2013 and ending on 25 September 2015, with an additional term of 2 years and 3 months imprisonment, commencing on 26 September 2015 and ending on 25 December 2017.

3. The total term of imprisonment is one of 4 years and 6 months.

4. The offender will be eligible for parole on 26 September 2015 and her sentence will expire on 25 December 2017.

**********

Decision last updated: 09 June 2015