R v AA (a pseudonym)

[2024] NSWSC 409

Supreme Court

New South Wales

Medium Neutral Citation:

R v AA (a pseudonym) [2024] NSWSC 409

Hearing dates:

28 March 2024

Date of orders:

18 April 2024

Decision date:

18 April 2024

Jurisdiction:

Common Law

Before:

Huggett J

Decision:

(1) The offender is convicted.

(2) For the offence of murder, I impose a sentence of imprisonment of 12 years and 3 months commencing on 1 March 2022 and expiring on 31 May 2034 with a non-parole period of 8 years expiring on 28 February 2030.

(3) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offence of murder of which she has been convicted. Her legal representatives are directed to advise her of the implications of those matters to her.

Catchwords:

SENTENCING – murder – young mother suffocated her 11-month-old daughter – early plea of guilty – facilitated the administration of justice – mental impairment and objective seriousness – mental impairment and moral culpability – special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Charbaji v R [2019] NSWCCA 28

DH v R [2022] NSWCCA 200

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

Category:

Sentence

Parties:

Rex (Crown)
AA (a pseudonym) (Offender)

Representation:

Counsel:
M Hay (Crown)
R Wilson SC (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission NSW (Offender)

File Number(s):

2022/00059740

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) a non-publication order extends beyond the deceased’s name to the names of all relatives of the deceased and to the addresses mentioned in the proceedings.

JUDGMENT

1. In August 2020, the offender gave birth to a baby daughter, Baby A. She was a very happy baby and members of her immediate and extended family enjoyed spending time with her and watching her grow and her personality develop. It is clear that she was deeply loved and was a source of immense pride and joy.

2. On 19 July 2021, the offender smothered Baby A. Intervention by paramedics resulted in a return of spontaneous circulation and Baby A was admitted to paediatric intensive care. An assessment on the morning of 20 July 2021 confirmed that Baby A was not breathing spontaneously and an absence of cranial nerve functioning. There was no change to her condition when she was assessed on 21 July 2021 and withdrawal of intensive care was recommended. That recommendation was accepted by the offender and Baby A’s father (“the father”). Baby A was disconnected from a ventilator on 21 July 2021 and passed away a few minutes later. She was 11 months old at the time of her death.

3. The offender is now to be sentenced for the ­murder of her daughter. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It carries a maximum penalty of imprisonment for life and in the circumstances of this case, attracts a standard non-parole period of 25 years imprisonment.

4. The offender also admits her guilt in relation to an additional offence of using an offensive weapon with intent to intimidate. It was committed on 8 March 2021 on the father and is laid pursuant to s 33B(1)(a) of the Crimes Act. Agreed Facts have been tendered in relation to this offence. It is appropriate for this additional offence to be taken into account when sentencing the offender for the offence of murder. It was committed upon a different victim and while it is an offence of a very different nature, it is not a trivial offence. The evidence establishes that the additional offence was committed while the offender was labouring under the same mental health impairments as the principal offence. It calls for only a very slight increase to the sentence appropriate for the offence of murder because of the reduced need to address personal deterrence and denunciation.

Background to the offence

5. The offender was born in the United Kingdom in 2002 and moved to Australia when she was 7 years old.

6. In July 2019 when she was 16 and 9 months of age, the offender commenced a relationship with the father. He was approximately 8 months older. Their relationship was volatile and characterised by toxic behaviour and violence upon one another. At times the offender and the father would send one another images of themselves self-harming.

7. In late 2019 the offender fell pregnant to the father. During an antenatal appointment in February 2020, the offender reported that the father had kicked her to the stomach and that in the previous week she had attempted to strangle herself with a phone charging cable but stopped as it was taking too long and her step-grandmother was calling for her. The offender laughed whilst making the disclosure.

8. Baby A was born in August 2020. The offender turned 18 in September 2020.

9. 13 days after her birth, Baby A was taken to hospital after she had apparently been intermittently gasping for air. Testing confirmed an upper respiratory tract infection.

10. For 4 to 5 months after Baby A’s birth, she, the offender and the father lived in a home in North Narrabeen with the offender’s stepmother, step-grandmother and half-sister.

11. Following the birth of Baby A, the father noticed that the offender’s mood and behaviour changed. He observed that she appeared sad and depressed. A friend in a local mother’s group also noticed that she looked overwhelmed and stressed when Baby A cried.

12. On 28 September 2020, the offender was referred to a psychologist by a doctor who recorded “some postnatal blue [sic]…not suicidal”. That same doctor made a record in December 2020, “worry that she might have post-natal depression”. The offender was initially prescribed Lexapro which was changed to Sertraline a week later. The offender was not particularly compliant with medication prescribed to her for her mental health.

13. In October or November 2020, the offender, the father and Baby A went on a trip with one of the father’s friends. Incidents involving outbursts of jealousy and low-level personal violence by the offender against the father took place.

14. After an argument with the offender’s stepmother (on a date that is not clear to me), the father moved out of the North Narrabeen home. Thereafter, the offender frequently visited him, often leaving the North Narrabeen home for days at a time. On occasions she would take Baby A.

15. On Christmas night of 2020, the father terminated his relationship with the offender and dropped her and Baby A back to the North Narrabeen home.

16. Sometime after their breakup, the offender sent a message to the father’s family which read, “You can have full custody of [Baby A] if you want.”

17. In January 2021, the offender contacted the father and told him about males she had slept with since their break-up. He became angry and sent several threatening messages to the offender before driving to the street where she resided. The father was apprehended by police and an Apprehended Domestic Violence Order (“ADVO”) was taken out against him for the offender’s protection.

18. On 18 January 2021, the offender told a mother in her local mother’s group, “I get stressed when [Baby A] cries ... [the father] told me I can’t report him for putting his [sic] hand over [Baby A’s] mouth, because he’s seen me do it”.

19. On 7 February 2021, the offender’s half-sister saw the offender standing outside their home. The offender said she had scissors in her pocket and wanted to stab a neighbour, her half-sister and herself. Other reports state that the offender was also cutting her own hair. The offender was conveyed by police to the Northern Beaches Hospital for assessment. She told staff she did not have a mental health condition, however hospital records noted that she was intoxicated and experiencing acute situational crisis and suicidal ideation and was suffering possible borderline personality disorder.

20. In February 2021, the offender travelled to Queensland with Baby A to visit her father. By this time, she and the father were on speaking terms. While in Queensland, the offender called an ambulance reporting that Baby A was crying and becoming blue. Investigations revealed normal results.

The Form 1 offence

21. On 8 March 2021, the offender and Baby A were visiting the father. At the time of this visit the father had been receiving Instagram messages from females and had begun communicating with a particular female. The offender became aware of this and told the father he was not allowed to talk to other women. The father went outside to have a cigarette. When he returned, the offender was speaking to the particular female on the phone and saying things including, “I’m coming to your house right now, who do you think you are?”

22. The father grabbed the phone from the offender and locked himself in the bathroom. When he came out, the offender was holding a kitchen knife with a 10-15cm long blade. The father said, “What are you doing with the knife you fucking idiot?” to which the offender said, “Who is this bitch? I’m going to stab her”. The father told the offender to “Put the knife down or you’re going to get hurt”, and laughed at the offender. The offender then pushed the father against the wall with her right forearm across his chest and held the knife against his stomach. The father again told the offender to put the knife down and grabbed her hand. He pushed her out of the way and punched her to the stomach and elbowed her jaw. The offender fell to the floor and dropped the knife. The father said, “Don’t you ever do that again. Next time, I’ll kill you.”

23. The offender then went to the kitchen and opened the knife drawer. The father slammed her hand in the drawer to prevent her from obtaining a knife. The offender began to punch the father to the face and chest. He grabbed the offender around her neck and swept her legs out from underneath her, causing her to fall backwards. The father held the offender on the floor with his hand around her throat and said, “know your place, you can either get out or I’ll throw you out”. The father let the offender go after she attempted to scratch his arms. The offender stood up and began punching at the father. The father picked the offender up and took her outside. He left her at the front door with the knife and said, “Don’t come back here. You’re not seeing [Baby A] again. Next time you pull a blade on someone think again you stupid bitch. You’re lucky it was me you done that to. If it was anyone else … you’d be on the floor in your own blood”.

24. The offender picked the knife up and ran into the house. Baby A was still inside. The father followed and started to video record. The offender placed the knife against Baby A’s chest and stomach. The father told the offender to move the knife away from Baby A. The offender said, “No. You think you’re fucking clever talking to girls on the phone.” The father again told the offender to move the knife away from Baby A and he stopped recording. He then pulled the offender onto the floor and dragged her to the front door. The offender asked to come back inside and the father said that he would call the police. The offender said, “We’ve got an AVO against you, you idiot. You’re not supposed to see [Baby A].”

25. Later the same day, the offender attended Blacktown Police Station and made admissions in relation to this incident. She was taken to Blacktown Hospital for a mental health assessment however before that could occur, she absconded. At about 10:00pm, the offender returned to the father’s house and apologised. She asked to be allowed in to change her clothes and the father said she could stay at the house.

26. On 30 April 2021, the offender made a recording stating she could see Baby A’s death and described her funeral. She sent that recording to a friend.

27. About 2 to 4 weeks before the offender killed Baby A, the father saw Baby A for the last time. On that occasion, the offender told the father she saw demons who were trying to hurt Baby A. She also said that “About a week ago I was giving [Baby A] a bath. Voices were talking to me. They’re telling me to hold [Baby A] under the water till [sic] she stops breathing. I wouldn’t do it. You know I wouldn’t do it.” The father encouraged the offender to speak to someone about those thoughts.

28. On 11 July 2021, the offender was at home with Baby A, her stepmother, step-grandmother and half-sister. The offender began screaming saying that Baby A had fallen down some stairs. The offender’s stepmother took the offender and Baby A to the Northern Beaches Hospital. The offender told staff that, “the door was closed and that [Baby A] opened the door and crawled out of the room”. Hospital staff noted that Baby A was too young to have been able to open the door if it had been fully closed. A CT scan found no signs of injury.

29. On 15 July 2021, the offender’s half-sister heard the offender talking about searching for adoption agencies. This was not the first time she had heard the offender speak about giving Baby A up for adoption. The offender also told the father that she was struggling to care for Baby A. The father said he could not be there to help her because of the ADVO.

30. In the days prior to the death of Baby A, the father sent the offender a Snapchat video saying words to the effect of, “I’m sick of your bullshit. I’m sick of going back and forth. I can’t do this anymore … I’m done with you, goodbye.” The offender began threatening self-harm saying words to the effect, “Have fun looking after [Baby A] on your own.” The father described that he felt unable to break up with the offender because of her threats of self-harm and told her, “I’m not going anywhere. We can keep trying.” The offender then sent a message which read, “No one has shown me love in 2 weeks even u until I go all like this then u all wanna ‘love me’. I’ve cried about how I can’t look after [Baby A] and how I’m not okay and YOU OR MY FAMILY DID ANYTHING OR EVEN ACT LIKE U CARE.”

31. On 17 July 2021, the father discovered that the offender was speaking to another man and he sent the offender a Snapchat saying he hated her.

19 July 2021

32. On 19 July 2021, the offender was at home with Baby A, her stepmother, step-grandmother and half-sister.

33. At 12:12pm, the father sent the offender a message which read, “go be a hoe”, and he ended their relationship. He also blocked the offender on his phone and social media accounts.

34. At 12:22pm, the offender sent the father’s sister a message which read, “Hey me and my mate are driving up to Rooty Hill did you guys want [Baby A] tonight. All g if not”. The father’s sister replied, “Yes please, what time do you recon [sic] you will get here I will clean up”. The offender did not respond.

35. At around 2:00pm, the offender’s half-sister gave Baby A a bottle and played with her. The offender then put her to sleep in her cot which was in the offender’s bedroom. About half an hour later, the offender’s half-sister checked on Baby A and adjusted her sleeping position.

36. Later that day the offender shrieked and ran downstairs screaming, “Mummy!” Her stepmother ran to Baby A and picked her up from the cot. She was grey, floppy and her lips were purple. The offender's stepmother said, “She’s dead” to which the offender responded, “[D]on't say that you're hurting her”. The offender's stepmother replied, “I can't fucking hurt her, she is dead”. The offender’s stepmother called out to the offender’s half-sister to get an ambulance and commenced cardiopulmonary resuscitation (“CPR”).

37. At 5:39pm, the offender’s half-sister called Triple 0. At 5:50pm, paramedics arrived and took over CPR. Baby A had no pulse and was not breathing. She was warm to touch and had vomit in her airway. Paramedics believed she had either been kept warm or had only recently experienced cardiac arrest. After about 25 minutes, paramedics were able to restore spontaneous circulation. At some point police arrived. Baby A was taken to the Northern Beaches Hospital by ambulance and the offender was taken there by police. She was stabilised and placed on life support. The offender was asked if she wished to be with Baby A and touch her however, she declined.

38. Baby A was transferred to the paediatric intensive care unit at Sydney Children’s Hospital where she was admitted at 10:55pm. The father attended the hospital and noticed that the offender was on her phone most of the time. He became angry and grabbed the offender’s phone and commenced looking through it whereupon there was an argument. Police seized the offender’s phone which caused the offender to become angry.

39. Both the offender and the father were interviewed by police at the hospital. The offender told police she had fallen asleep with Baby A on her chest and had woken up to find Baby A’s face in the bedding and her body grey and lips and fingernails blue. She also told police she had suffered from post-natal depression for two or three months after giving birth to Baby A and said, “I may seem like I don’t care, but I’m tryin’ to like keep all my emotions in. I’m being like, oh, she’s gunna come out fine. Then it [sic] it’s not then obviously I’m gunna break down in tears and, like have a mental breakdown.”

40. As referred to at [2] of these reasons, Baby A was disconnected from a ventilator at 5:45pm on 21 July 2021 after there was no sign of cranial nerve functioning and she passed away a few minutes later.

41. At 7:30pm, the father was sitting on the hospital bed with Baby A. The offender was sitting in the far corner of the room and said, “I can’t see [Baby A] dead, so I am just sitting over here.”

42. A postmortem examination concluded that the terminal cause of death was the combined effects of hypoxic-ischaemic encephalopathy with raised intracranial pressure and aspiration pneumonia. However, the underlying cause could not be determined. Evidence of blunt force trauma to Baby A’s head with two separate points was noted but there was no indication it was related to the cause of death. No significant identifiable natural disease process was observed that could have contributed to or caused the death of Baby A.

Events after the offence

43. In the days following the death of Baby A, the offender was seen on occasion to be laughing while apologising saying she did not know how to cope.

44. On 26 July 2021, the offender and a friend attended the mortuary for the purpose of viewing Baby A’s body. When the offender saw Baby A’s body she said, “Hi my monkey, you look dead, you look very dead”, and then she and her friend laughed.

45. Not long after Baby A died, the offender was heard to say, “I have to go to the grave, all the kids don’t like her and she’s hungry”.

46. On 30 July 2021, the offender spoke with a celebrant to arrange Baby A’s funeral. The celebrant noticed that she appeared upbeat and chirpy.

47. On 3 August 2021, a funeral service was held for Baby A. The offender did not appear emotional.

48. On 4 August 2021, the offender spoke to a friend on the phone numerous times. In one call she said, “I need [Baby A] … I'm digging the little bitch up, she's coming with me”. During another call she said, “What if the demons … tell them I’m lying and I get arrested?”

49. On 5 August 2021, police conducted a walkthrough with the offender. She provided the same false account as that provided at the hospital (namely, falling asleep and waking to find Baby A unconscious).

50. On 12 August 2021, the offender told the father, “I keep seeing these demon things and then when I close my eyes it’s worse. I don’t know what to do”. The father told the offender to go and see a doctor however she declined saying, “No, he will think I’m fucking insane and put me in a mental ward”.

51. In late August 2021, the offender’s father arranged for her to travel to the UK where she stayed until early January 2022. The offender stayed with family friends and worked casually as a bartender. Upon her return to Australia, the offender lived with her father in Brisbane and worked as an apprentice hairdresser.

43. In February 2022, the offender told her stepmother she wanted to live in Sydney.

44. On about 14 February 2022, the offender’s stepmother received a message that the offender had been in a car accident in Tamworth. It would appear she was also involved in receiving stolen property and an assault occasioning actual bodily harm. The offender was apparently admitted to Tamworth Hospital for a night and then caught a train from Tamworth to Sydney the following day whereupon she returned to her stepmother’s house. A doctor’s appointment was arranged for the offender to obtain a referral to see a psychologist however the offender’s father flew to Sydney and took her back to Brisbane before she was able to attend that appointment.

45. On 24 February 2022, the offender used her father’s credit card to book a flight from Brisbane to Sydney.

46. At 1:00am on 25 February 2022, the offender’s stepmother received a phone call from the Nepean Hospital informing her that the offender was in hospital and was asking to be picked up. The offender’s stepmother told a nurse that the offender was mentally unwell, was a danger to others and required admission. The hospital nevertheless discharged the offender and allowed her to leave in a taxi. The offender arrived at her stepmother’s home in North Narrabeen at around 3:00am. She was hysterical, covered in vomit and was screaming, “I want [Baby A]. I want my baby.”

47. On 27 February 2022, the offender’s stepmother drove her to meet the father. A lawfully recorded conversation took place which included the following:

The father: I miss [Baby A].

Offender: I miss her too.

The father: I swear you were jealous of her.

Offender: I was ‘cause she took my man.

The father: What, you didn’t want to share, share me with your own daughter?

Offender: No … I wanted you.

…

Offender: … but I felt bad. I didn’t kill her.

The father: … How the fuck did that come into the topic?

…

Offender: I’m not lying to you.

…

Offender: I loved her to fucking pieces. Jesus Christ. But I was just very mentally unwell and, unfortunately, [Baby A] had to suffer because of that. But she was a very happy baby as well.

…

Offender: I really hope you’re not recording this conversation.

…

The father: Do you think you rolled on her?

Offender: There could be a small chance, but it would be very weird if I did ‘cause I never would roll on her in my sleep. I never have …

…

The father: What were those thoughts telling you?...

Offender: … Um, they were telling me I should kill myself and I should kill [Baby A], I should kill you.

The father: All of us?

Offender: Yeah, like, my mind was telling me we all have to go together…

…

Offender: I didn’t mean to kill our kid. I’m so sorry.

…

Offender: Please know I didn’t mean to hurt her … I couldn’t take it anymore … And I just put her head in the pillow … and it was like a minute.

…

The father: Did you hold her? Please tell me.

Offender: For like a minute and then I was like, ‘what the fuck am I doing?’ And then it was.

…

The father: But you killed her yeah?

Offender: Yeah. I didn’t mean to. (Crying) … I’ve nearly gone to the cops. Every fucking day, I nearly gone.

…

She woke up and she was just crying, and she wouldn’t stop. She was just going and going. And I was like … I just turned her over, her face over and put it in the pillow … and then she just stopped, and I was like, ‘Wait, what the fuck?’…

The father: You put your hand on top of her head. Why? That’s my baby …

Offender: I didn’t mean to. (Crying). I just blacked out…I couldn’t handle her crying anymore.

57. The following day, the offender told her stepmother she had told the father something and, “if he ever said anything about it I would be in really big trouble”. They then spoke about the offender going to the hospital to have a mental health assessment. The offender said she planned to do that after she saw the father, which she expected would occur on 1 March 2022.

Arrest

58. The offender was arrested on 1 March 2022. She participated in a further interview in which she repeated her earlier false account about the circumstances of Baby A’s death. She also told police that:

• she never wanted to harm the father or Baby A;

• she and the father had conversations about putting Baby A up for adoption;

• it did not properly hit her that Baby A had died until she had been in the UK for a few weeks;

• she lied to the father when she told him she had killed Baby A because she wanted to see if he still loved her but knew she was mentally ill because, “what normal person lies about shit like that”;

• she wanted to hurt the father by making up that she had killed Baby A, although she still loved him;

• the father told her he loved her after she admitted to killing Baby A and that she planned to tell the father that what she said was a lie later that night however the father said that he could not see her then; and

• she had had visions of Baby A’s funeral and her sister and father dying and herself at her own funeral.

59. The offender was bail refused.

60. On 16 March 2022, the offender wrote a letter to her half-sister which included, “I'm sorry for what I did … I've been told I'm looking at life sentence so roughly 30 years behind bars. But with saying that I have adjusted to the jail life! And now call this place my home!”

61. On 17 March 2022, the offender’s stepmother received a letter from the offender which included, “Hey mum I know it must be hard for you trying to understand why I did what I did … I just wanted to say I'm so sorry I love you so much 30 plus years in jail”.

Admissions to Dr Andrew Ellis

62. Dr Andrew Ellis, Forensic Psychiatrist, was engaged by the offender’s legal representatives for various purposes including to provide opinions regarding fitness to be tried, the availability of a mental health defence and the offender’s mental health state at the time she killed Baby A. Dr Ellis conducted interviews with the offender on 16 September 2022, 25 January 2023 and 5 March 2024 and prepared reports dated 11 October 2022, 22 February 2023 and 21 March 2024.

63. In preparing his reports, Dr Ellis also had access to itemised material in the police brief, medical records relating to offender between May 2020 and February 2022 and Justice Health records following her admission to custody. Dr Ellis also received an email from the offender’s father dated 14 March 2024.

64. I note that although the offender informed Dr Ellis that she saw a psychiatrist on occasions between the ages of 11 and 16, it does not appear that Dr Ellis had access to any records that might exist in relation to such treatment.

65. On 25 January 2023, the offender made the following admissions to Dr Ellis:

... on 19 July 2021 she was feeling alright. She said that she received a text from [the father] indicating he wanted to end their relationship and after this she “turned dark”. She said, “I became a nasty motherfucker”. She said that she was trying to get [Baby A] to go to [the father’s] sister. Then she had a thought that “if [Baby A] dies [the father] will have to be with me.” She said that she began to battle with in [sic] herself, not wanting to harm [Baby A], but also wanting to be with [the father]. She said that she picked [Baby A] up, kissed her and then grabbed her head. She said that she put her hand over her mouth to suffocate her. She then relented but then went back to suffocating [Baby A]. She said that the voices were there at the and (sic) she felt an urge like a demon thing overtaking her body. She said it felt like she was possessed. She said that the voices were telling her to do it. She said all her actions were so [the father] could be with her.

She said that after she had done it she felt “wild and terrible”. She said that she felt guilty inside and that her thoughts were not normal. She said that she would see visions of [Baby A] crawling and hear her voice. She said that these things have stopped now. She said that she could not bear telling anyone what she had done up to the point of the current interview.

66. The offender instructed her legal representatives to serve all of Dr Ellis’ reports on the Crown and waived privilege over their contents.

67. During the course of the Early Appropriate Guilty Plea conferencing in the Local Court, the offender made a number of offers to resolve the matter. Her offers were not accepted by the Crown. The offender ultimately pleaded guilty to murder while the matter was before the Local Court. It is agreed she is entitled to a 25% discount on the sentence otherwise appropriate to recognise the utilitarian value of her plea of guilty.

The impact of the offence

68. The loss of the life of any child is a tragedy. That is particularly so when that loss is caused by the deliberate actions of a parent. I received four statements that were read out in court that describe the despair and grief felt at the passing of Baby A. Each statement contains heartfelt and emotional words about Baby A and describes the grief each continues to experience as a result of Baby A’s death, grief no doubt compounded by the fact Baby A’s mother is responsible for her death. The statements also express sadness that Baby A never had the opportunity to grow and become her own person.

69. The offender’s half-sister who is Baby A’s aunt, described amongst other things how excited she was when Baby A took her first steps only a few days before her death and how devastated she is that her life has come to an end. The father spoke of an unrelenting sense of guilt following Baby A’s death and feels that he will never be the same. He wakes up every day angry and depressed. Baby A’s step-grandmother echoes similar sentiments adding, “[y]ou don’t get used to her being dead.” Baby A’s paternal grandfather feels he will never come to terms with her death.

70. Each family member has expressed ongoing physical pain at the loss of Baby A and I have no doubt each of them, along with the other members of Baby A’s family and the offender, will continue to love and miss Baby A for the rest of their lives.

71. On behalf of the court and the community, I extend my condolences to Baby A’s family for the loss they have endured and will continue to endure. I acknowledge the impact of the offence however recognise that no sentence I impose could ever account for the loss of the life of Baby A. I can only hope that in time some comfort is found in the many happy memories all of Baby A’s family holds of her.

The offender’s background and personal circumstances

72. Information regarding the offender’s background and subjective circumstances is primarily before me through the reports of Dr Ellis referred to at [62] of these reasons.

73. The offender was born in the United Kingdom in 2002. She was an only child to her parents and has three older half siblings – a half-sister on her father’s side and two half-siblings on her mother’s side.

74. The offender was an advanced child in terms of verbal and motor milestones. However, her home life was dysfunctional and chaotic. Relations between her parents were poor and they separated when she was aged four years.

75. The offender witnessed domestic violence in her home, including occasions when arguments regarding her welfare became violent requiring police involvement. Her mother suffered alcohol dependency and bipolar depression. She was apparently volatile and very unstable. She and the offender moved homes frequently and the offender had only intermittent contact with her father.

76. The offender’s father describes numerous incidents where the offender was neglected while her mother was intoxicated. On one occasion when she was two or three years old, her mother blacked out due to intoxication and the offender was found in the home crying with no nappy on. On another occasion, her mother set fire to their home.

77. The offender was placed into foster care as a young child for a period of time after her mother was apprehended for drink driving. She was then placed into the care of her mother’s aunt while her father obtained court orders for custody. During this period of time, the offender only saw her mother under the supervision of social services.

78. The offender’s father obtained custody of the offender when she was aged seven years and they moved to Australia for a new start. Here, the offender lived with her father, stepmother, step-grandmother and half-sister. She attended school and was apparently a good student with friends and no disciplinary problems.

79. When the offender was 11, three significant things occurred. Her mother died, her grandfather (with whom she was apparently close) died and her father’s relationship with her stepmother broke down resulting in her father relocating to Queensland for work. After their split, the offender remained living with her stepmother, step-grandmother and half-sister. While she saw her father approximately once each month and the family holidayed together numerous times, the offender reported that she felt very angry being left in this home.

80. The offender’s behaviour declined significantly after these events. She began behaving violently at school including punching students. Her behaviour escalated until she was expelled for punching a teacher to the head.

81. By the age of 12, the offender was drinking alcohol regularly, reportedly drinking half a bottle of vodka each day at school and occasionally experiencing blackouts. By the age of 13, she was smoking cigarettes on a daily basis and smoking half an ounce of cannabis on weekends in addition to regularly using crystal methamphetamine. Between the ages of 14 and 16, she was using cocaine regularly and at the age of 15, was using ecstasy “on and off”. The offender also reported using heroin from the age of 15 to 16 and experimenting with LSD and psylocibin. Whilst now detoxified in jail, the offender has never engaged in a substance abuse rehabilitation program.

82. The offender reported having about four “boyfriends” in addition to the father, who she had met through a friend on Snapchat. She fell pregnant to the father two months after they had been together, however that pregnancy ended because the offender reported she felt pressure from her parents to terminate it. The offender described that after the termination, she began to feel very aggressive and would pull knives out if she was in an argument describing that she was “always ready for a punch on”. She also reported that it caused her to lose her confidence and that she began drinking large quantities of vodka each day and using cannabis, heroin and ice.

83. When the offender fell pregnant with Baby A in late 2019, she stopped using drugs and reduced her intake of alcohol considerably. During her pregnancy her mood vacillated between crying while at other times flaunting her pregnancy and feeling “on top of the moon”. The offender described her arguments with the father as being both exciting and dramatic with romantic thoughts blended with anger.

84. Following the birth of Baby A in August 2020, the offender reported that she was an emotional wreck. She was struggling, felt isolated and unsupported. She also reported feeling overwhelmed and stressed when Baby A cried.

85. At the time of the Form 1 offence in March 2021, the offender reported that she was looking through the father’s telephone and saw communications with a female. She described that she pulled a knife on the father because she wanted him to stop communicating with the female. The offender informed Dr Ellis that she wanted the father to understand that the relationship was “all or nothing, be with me or be stabbed”, and that she wanted to hurt him if he was going to cheat on her. She further stated that she placed the knife close to Baby A’s torso because “I wanted to make him realise I was batshit crazy”, and to make him understand that she was not coping. The offender reported that she thought that by behaving this way, the father would “stop seeing the sluts and would care for me”.

86. By the end of April 2021, the offender was using drugs and having visions of Baby A being dead. She was also hearing voices telling her to harm Baby A.

87. In her most recent interview with Dr Ellis, the offender described that her heart aches for Baby A and that preparing for court triggered memories of domestic violence in her own childhood and in her own relationships, memories of the death of her mother and her lack of a stable family. She described feeling that no one took her cries for help seriously because she was drinking heavily and using drugs and came across as an attention seeker. The offender also told Dr Ellis she pleaded guilty to murder because it would not be fair to Baby A to drag issues further through the court with a trial.

Mental health

88. The offender informed Dr Ellis that she had seen spirits since she was 11 years old and from around February 2021, she saw things that looked like people, the slender man, her daughter or shadows. She reported seeing a clown’s body with her mother’s head who tells her what will happen. She also informed Dr Ellis that she experienced auditory hallucinations including a faint whisper that mimics other inmates and says Baby A’s name and the names of family members.

89. When the offender was initially admitted to custody her mood was variable. She was often depressed for days but occasionally had an elevated mood. She had trouble sleeping, often waking with nightmares about people dying. She frequently felt anxious and was angry and aggressive towards inmates she perceived to be talking about her. She reported being involved in fighting another inmate and the victim of assault and taunting by other inmates due to her offence.

90. The offender was initially prescribed Mirtazapine by Justice Health however it had undesirable side-effects and was changed to Escitalopram. The latter has improved her sleep and reduced her nightmares and has helped stabilise the offender’s mood and reduced her anxiety and aggression. The offender’s auditory and visual disturbances have also reduced with her improved emotional control.

91. The offender has seen two psychologists in custody but did not like either of them. She currently attends a group therapy program which has helped her manage her emotions and has taught her how to engage in positive self-talk. She also attends a religious group, a personal development course and a vocational course in the theory of hygiene.

92. In September 2022, Dr Dorney, a psychiatrist working with Justice Health, diagnosed the offender with borderline personality disorder on a background of complex trauma.

93. Dr Ellis is of the opinion the offender meets the diagnostic criteria for the following conditions:

1. Post-traumatic stress disorder resulting from the trauma associated with events including the loss of her mother (both when the offender was taken into care and when her mother passed away) and domestic violence in her adult life. In his opinion the early and ongoing trauma experienced by the offender likely affected her personality in that she reported instability and conflict within relationships including significant abandonment issues. Dr Ellis noted a history of suicidal ideation and behaviours and emotional decompensation with aggression and self-harm in times of stress.

2. Personality disorder with borderline and schizotypal traits related to early and ongoing developmental traumas.

3. Substance abuse disorder which has worsened as a result of the offender’s use of substances as self-medication for her trauma and personality symptoms.

94. In Dr Ellis’ opinion, at the time of the commission of both the Form 1 offence and the murder of Baby A, the offender was suffering the effects of post-traumatic stress disorder and personality disorder which impaired her mood, thoughts, volition and perception and which was exacerbated by substance abuse. In the weeks leading up to 19 July 2021, she was experiencing perceptual disturbances including seeing shadows, seeing Baby A dead and hearing the voices of demons. In the months before the passing of Baby A, the offender was using cannabis and on occasions ice and she was experiencing considerable mood instability and impulsivity including violent confrontations with the father and presentations to hospitals and to police. She was becoming distressed when Baby A cried and was experiencing conflict in relationships with persons who otherwise supported her including her half-sister, stepmother and the father.

94. Dr Ellis noted that persons with borderline personality disorder are prone to frantic attempts to avoid abandonment and paradoxically, the more tempestuous the relationship, the stronger the need for it to continue. Receipt of the father’s message on 19 July 2021 communicating an end to their relationship and his actions in blocking the offender led to a thought process in which the offender’s actions were directed at seeking to re-establish her relationship with the father in a disorganised and hopeless manner that, to her, seemed logical (much like she tried to do on 8 March 2021).

95. In Dr Ellis’ opinion,

Although she likely had frustration at parenting a new child, and had limited internal resources to do so in terms of patience and putting the needs of others first, she did seek help in the past when she thought the child was sick. This makes it less likely that her only motive to harm the child was frustration and to be rid of them. She also reports “battling” within her mind at the time as she also did not wish to harm [Baby A]. Therefore, it a (sic) reasonable to assume that her mental disorders had a role in her decision making at the time.

She was in addition a young mother, with a low level of education. Her personality disorder and early traumatic experience impaired her general mature development. She had few stable resources to draw upon when distressed. Therefore she was generally immature in addition to suffering specific mental disorders.

97. I have no hesitation in accepting the opinions of Dr Ellis regarding the conditions the offender suffers including his belief that the offender’s traumatic childhood was a significant factor in the genesis of her mental impairments. I also accept his opinion that at the time the offender intentionally killed her baby, she was suffering from post-traumatic stress disorder and a personality disorder which, while falling short of establishing a mental health defence, were causally linked to her actions in that they made a material contribution to the commission of the offence (and indeed to the commission of the Form 1 offence).

The seriousness of the offence

98. While it is not necessary to describe the objective seriousness of an offence by reference to a notional mid-point, it is necessary to assess the seriousness of an offence for which an offender is to be sentenced and to identify the factors that bear upon that assessment. [1]

    1. DH v R [2022] NSWCCA 200 at [57] – [62].

99. Murder involving an intention to kill is more serious than one involving an intention to inflict grievous bodily harm. [2] That said, the seriousness of each case must be determined on its own particular facts and circumstances.

    2. Charbaji v R [2019] NSWCCA 28 at [180].

100. Although the precise mechanism of suffocation is not known (noting that the offender told the father she “put [Baby A’s] head in the pillow”, and told Dr Ellis she “put her hand over [Baby A's] mouth”), central to an assessment of the seriousness of the offence committed is the fact that as a result of the offender’s intentional actions, the life of a very young, vulnerable and helpless child was taken not long after it had begun.

101. The offence was committed in Baby A’s home where she should have been safe and protected. However, that is a feature encompassed by the fact the offence constitutes a breach of parental trust and I have been careful not to double count this feature.

102. The death of Baby A was caused by one act of suffocation (albeit during which there was a brief moment where the offender relented). It was not accompanied by any additional act of violence such as sustained physical violence. Nor was there evidence of neglect or other abuse.

103. The existence of a mental impairment may affect the assessment of the objective seriousness of an offence. [3] It is submitted on behalf of the offender that the impairments she was suffering when she killed Baby A, reduce the objective seriousness of the offence she committed because they are so connected with the nature and circumstances of her offending.

     3. DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96].

104. As I have indicated, I am satisfied that when the offender suffocated Baby A she acted with an intention to kill her. However, that intention was formed impulsively, without planning and it was fleeting. So much so is evidenced by the offender’s reaction immediately after she had suffocated her baby wherein she implored her stepmother not to hurt Baby A. I have no doubt at all that when the offender committed the act that caused the death of her baby, she was not motivated by a heinous motive such as greed or cruelty but was driven by a completely flawed and irrational motive that her conduct would lead to the resumption of her unhealthy relationship with the father. That belief arose from the impairments she was suffering and in particular the borderline personality disorder which caused fractured personal relationships with persons to whom she could seek support and created an intense fear of abandonment. In the circumstances of this offender, I am satisfied this is one of those rare cases where the mental health impairments she was suffering at the time she killed her baby are so closely connected to the nature and circumstances of her offending that it reduces to an extent the objective seriousness of her offending.

105. For all of these reasons, I find the objective seriousness of the present offence falls below the middle of the range of objective seriousness but not at the lower end.

Moral culpability

106. Turning to the offender’s moral culpability or moral blameworthiness. There can be no doubt that the moral culpability of a parent who commits a deliberate act intending to kill their child must be high. Every parent carries both a moral and a legal responsibility to nurture, care for and protect their child from harm. The offender failed to discharge that responsibility in the most serious way one could contemplate. However, the mental health impairments under which this offender was labouring when she killed her baby coupled with her youth and general immaturity, impacted her capacity for rational thinking and reduce to a not insignificant extent the offender’s moral blameworthiness.

Record

107. The offender appeared before Manly Local Court in August 2021 for an offence of common assault which was committed on 29 July 2021. That offence occurred after the offender “bashed” a woman in the head at an Officeworks store after she made a comment about Baby A. A 12-month conditional release order without conviction was imposed.

108. In November 2022, at which time the offender was bail refused for the murder charge, she appeared before Armidale Local Court for offences committed on 14 February 2022 of assault occasioning actual bodily harm, receiving stolen property and driving whilst unlicensed (as referred to at [53] of these reasons). The offender received an effective fixed period of imprisonment of 3 months to date from 5 October 2022 and to expire on 4 January 2023. While I was not provided with the facts in relation to these offences, it is reasonable to conclude that but for being bail refused in relation to the present matter, alternatives to full time custody would have been available. In my view, the sentence to be imposed for the serious offence before this Court should be wholly concurrent with the sentence imposed by Armidale Local Court.

109. I have considered whether the commission of the July 2021 and February 2022 offences should operate to deny the offender the leniency that would otherwise be appropriate were she to appear before this Court without a criminal record. Given the matters on her record were committed around the same time the offender was suffering the impairments diagnosed by Dr Ellis and given the very different nature of those offences, I do not consider they disentitle the offender to the leniency appropriate to a first-time offender.

Rehabilitation and remorse

110. The offender was previously on protection but is now in the general part of the jail. She attends a group therapy program which has assisted her to manage her emotions and personality disorder and to engage in more positive self-talk. She has been employed whilst in custody, presently in the tech and assembly area, and attends a religious group, a personal development course and a vocational course in the theory of hygiene operations. She has completed the Positive Lifestyle Program and a drug and alcohol program. She apparently enjoys reading true crime books and denies any current thoughts of self-harm or suicide. She has described she has ambitions to become an advocate for women suffering postnatal depression and struggling with parenting.

111. She has expressed remorse in her letters to the court, to her half-sister and to her stepmother. Dr Ellis observed that she appeared ashamed of her actions and he did not observe any concerning attitudes. She admitted her conduct to Dr Ellis and waived privilege over those admissions. That conduct provided considerable assistance to police investigating Baby A’s death because, although the offender made admissions to the father, she denied that what she told him was truthful when she was interviewed by police asserting that she said such things in order to re-establish her relationship with the father.

112. Without her admissions, the police otherwise had an inconclusive autopsy report and a potential case where the offender may have had a mental health defence and/or the offence of infanticide available to her. It was in these circumstances that she pleaded guilty to murder.

113. In sentencing the offender, I accept in her favour that the disclosures she made to Dr Ellis which were in turn provided to the prosecution with her consent facilitated the administration of justice. They also assisted the police investigation because while they were disclosures about the offence for which she is to be sentenced (and about the Form 1 offence), given the inconclusive evidence gathered during the autopsy, her disclosures to Dr Ellis were significant and useful.

114. It was the joint position of the parties that the circumstances did not require the nomination of a numerical discount for assistance. I have however taken into account in the offender’s favour the nature and effect of her disclosures. In my view, there is considerable evidence to establish that the offender is genuinely remorseful for her offending.

115. Dr Ellis is of the opinion that the offender currently has reasonable insight into her mental impairments and their link and contribution to her criminal conduct and the need for treatment. He noted she has persisted with treatment in custody and expresses motivation to continue such treatment which shows an improvement in her insight compared to when she was in the community.

116. Acknowledging the predictive nature in assessing an offender’s risk of reoffending, Dr Ellis opined that the offender presented as a moderate risk for reoffending stating that with professional support and supervision that risk would likely be reduced. He observed that abstinence from substances will be key to treatment and rehabilitation in addition to psychotherapy to treat her post-traumatic stress disorder and personality disorder.

117. The offender is engaging in rehabilitation to address factors that contributed to her offending. These favourable matters mean her prospects for the future are reasonably positive insofar as that can presently be judged given her future outside of jail remains some distance off.

118. This assessment has relevance to the role specific deterrence has to play in determining the appropriate sentence. While I accept it is unlikely that the offender will offend in this way again, her mental health impairments will make her vulnerable to re-offending in some other way in the future. For that reason, it is essential that she continues to participate in therapy and treatment while in custody and that she be assisted on her eventual release to the community. The need the offender will have for assistance on her release coupled with her age, the fact this is her first time in custody and the existence of her mental impairments justifies a finding of special circumstances.

119. I have referred to a number of the purposes of sentencing thus far in these reasons. They pull in competing directions. On the one hand, the offender must be punished and held to account for taking the life of her baby. On the other hand, considerable weight must be afforded to the offender’s youth and rehabilitation and the protection of the community that successful rehabilitation will provide. I accept the offender’s mental health impairments make her an inappropriate vehicle for general deterrence and reduce the need for weight to be afforded to denouncing her conduct.

120. There is no issue that the only appropriate penalty is one of full-time imprisonment. As I have indicated, I have found special circumstances warranting a reduction to the statutory ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act1999 (NSW). The non-parole period I will impose is the minimum I consider justice requires the offender to serve having synthesised all relevant considerations.

121. The non-parole period will be less than that prescribed because of the findings I have made regarding the objective seriousness of the offence and the offender’s subjective circumstances.

Orders

122. The offender is convicted. Taking into account the offence on the Form 1 and allowing a discount of 25% to reflect the utilitarian value of her plea of guilty, the offender is sentenced to a term of imprisonment of 12 years and 3 months to date from 1 March 2022 and expiring on 31 May 2034. There will be a non-parole period of 8 years imprisonment expiring on 28 February 2030.

123. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offence of murder of which she has been convicted. Her legal representatives are directed to advise her of the implications of those matters to her.

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Endnotes

Decision last updated: 18 April 2024