R v AB

[2024] NSWSC 108

Supreme Court

New South Wales

Medium Neutral Citation:

R v AB [2024] NSWSC 108

Hearing dates:

12 February 2024
13 February 2024

Date of orders:

15 February 2024

Decision date:

15 February 2024

Jurisdiction:

Common Law - Criminal

Before:

Weinstein J

Decision:

The offender is sentenced to a term of imprisonment of 16 years and 6 months with a non-parole period of 11 years.

Catchwords:

CRIME – sentencing – murder – matricide – significant background of deprivation and disadvantage – mental health impairments – moral culpability

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18

Bugmy v the Queen (2013) 249 CLR 571

DH v R [2022] NSWCCA 200

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 243 FLR 28; [2010] NSWCCA 194

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

Hoskins v R [2021] NSWCCA 169

Luque v R [2017] NSWCCA 226

Markarian v The Queen (2005) 228 CLR 357; (2005) 215 ALR 213; [2005] HCA 25

Muldrock vThe Queen (2011) 244 CLR 120

Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207

Perkins v R [2018] NSWCCA 62

R v Erazo [2016] NSWCCA 139

R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56

R v Millwood [2012] NSWCCA 2

R v MJB [2014] NSWCCA 195

R v Tuala [2015] NSWCCA 8

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

Category:

Sentence

Parties:

Rex (Crown)
AB (Offender)

Representation:

Counsel:
B G Campbell (Crown)
J Watts (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2020/250141

Publication restriction:

(1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the publication of the following is prohibited:
(i) The identity of the offender and her children, or any detail that may tend to identify her or her children including the location of her residence at the time of the offence.
(ii) The identity of the deceased, or any detail that may tend to identify her including the location of her residence at the time of the offence.
(iii) The identity of the biological sister of the offender and biological daughter of the deceased, or any detail that may tend to identify her including the location of her residence at the time of the offence.
(iv) Any details that disclose or may tend to disclose the offender’s biological sister’s involvement in the Children’s Court care jurisdiction including details about her status as a child in care under the Children’s Court jurisdiction.
(v) Any details that may disclose that the offender’s biological sister was a person who was the victim of a criminal offence (prosecuted or otherwise) prior to attaining the age of 18 years.
(2) The order applies in all States of the Commonwealth of Australia.
(3) This order applies for a period of 50 years from 12 February 2024.

JUDGMENT

1. The offender AB, born in 1988, is before the court for sentence for one count of murder contrary to s 18(1)(a) of the Crimes Act 1900 (the Crimes Act) for which the maximum penalty is life imprisonment and for which there is a standard non-parole period of 20 years. The offender also asks the court to take into account one offence of destroy or damage property (domestic violence) contrary to s 195(1)(a) of the Crimes Act on a Form 1 basis. AB pleaded guilty in the Local Court and was committed for sentence on 12 July 2023.

2. On the application of the Crown, and with the consent of the offender, I made the following non-publication orders at the commencement of the proceedings:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), I prohibit the publication of the following:

1. The identity of the offender and her children, or any detail that may tend to identify her or her children including the location of her residence at the time of the offence.

2. The identity of the deceased, or any detail that may tend to identify her including the location of her residence at the time of the offence.

3. The identity of the biological sister of the offender and biological daughter of the deceased, or any detail that may tend to identify her including the location of her residence at the time of the offence.

4. Any details that disclose or may tend to disclose the offender’s biological sister’s involvement in the Children’s Court care jurisdiction including details about her status as a child in care under the Children’s Court jurisdiction.

5. Any details that may disclose that the offender’s biological sister was a person who was the victim of a criminal offence (prosecuted or otherwise) prior to attaining the age of 18 years.

2. The order applies in all States of the Commonwealth of Australia.

3. This order applies for a period of 50 years from 12 February 2024.

3. I will refer to all persons by initials, so as to anonymise them. I mean no disrespect in doing so.

4. I note that there is also a statutory non-publication order with respect to the names of the offender’s children and any material that tends to identify them, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

5. At the outset, I observe that this is a tragic case. AB is to be sentenced for the murder of her mother. A matricide is shocking and calamitous for the family of the victim and the community. It is with the deepest sorrow and regret for the victim’s family and the greater community that I proceed to sentence.

6. Late on the evening of 21 August 2020, when she was 32 years old, the offender borrowed a car and drove from her home to her mother’s home, about 100 kilometres away. The offender drove to her mother’s house arriving in the very early hours of 22 August 2020. The offender killed her mother by stabbing her in the throat. There was also evidence of external pressure on the neck consistent with manual strangulation. After the murder, the offender drove back to her home.

Agreed Facts

7. The agreed facts, adopted by the offender, are as follows.

Background

8. The deceased CD had two children, EF and the offender.

9. The deceased had a history of borderline personality disorder, polysubstance dependence with heavy alcohol use disorder, heroin misuse, and a cannabis use disorder from early adulthood.

10. The offender had a chaotic and turbulent early childhood.

11. The offender’s family first came under notice of the Department of Community Services in 1984 when it received a notification concerning neglect. There were notifications concerning the offender in 1988 and 1989 (when she was a baby) which involved drug and alcohol abuse by the deceased and domestic violence in the home. The deceased admitted to having attempted to suffocate the offender. The offender has consistently reported that she witnessed and suffered domestic and sexual violence at the hands of her mother and others.

12. At about 14 months of age, the offender was removed from her mother’s care and placed into the care of a foster family, initially for a period of two years. At about 18 months of age, the offender was taken to a psychologist because of night tremors, fear of noise, screaming associated with temper and poor speech and language development. In 1991 the offender was returned to the care of the deceased, against the wishes of her foster family, subject to conditions which the deceased breached. Reports were made regarding the deceased’s use of drugs and alcohol, instances of domestic violence, and concerns that the offender had been sexually abused. In 1992 (at age 4) the offender was placed into foster care while the deceased attended a residential rehabilitation centre for approximately 7 weeks. Later that year, the offender was returned to the care of the deceased. A report noted that there was little confidence that the deceased would provide adequate support and care for the offender in the long term.

13. Also in 1992, a psychologist expressed the view that the decision to restore the offender to her mother’s care may have interfered with her attachments to her foster family and wrote:

“because of the abuses she has suffered and the disruption to her attachments, [AB] is at risk of later depression, drug use, inability to form trusting relationships and generally repeating her mother’s behaviour if she is not quickly placed in a secure and nurturing environment”.

14. The psychologist recommended that the offender permanently remain with her foster family, but the offender remained in her mother’s care until she was 12 years old. Thereafter AB lived with her aunt and uncle until she turned 18. The offender has engaged in deliberate self-harm since the age of 10.

15. The offender has three children: GH, JK and LM. They live with members of their family.

16. In 2019, the offender and her three children were living together. ST had been a friend of the offender since they dated in high school. ST observed that from late 2019, AB’s mental health was not good and she was struggling with multiple personality issues. On 30 December 2019 the offender was admitted to hospital with abdominal pain and depressive symptoms. On 26 January 2020 she was discharged into the care of her general practitioner with a plan to commence anti-depressants and counselling.

17. The offender’s general practitioner referred her to a local psychologist, who she first saw on 25 February 2020. Psychological therapy then commenced.

18. On 2 May 2020 the offender was taken by ambulance to hospital after cutting herself. She was kept overnight for observation.

19. In June 2020 the offender arranged for her children to stay with other family members. In August 2020 the arrangements became more permanent and the Department of Communities and Justice (DCJ) were involved in the transfer of their care. A caseworker was appointed.

Form 1 Offence

20. On 31 July 2020 the offender went to TK’s home. She and TK had recently ended their romantic relationship. AB picked up TK’s Play Station, threw it on the bed and broke it. The offender also pushed TK’s television causing it to break.

Events in August 2020

21. On 2 August 2020 the offender cut her wrists and neck in her bath and tried to drown herself. She live streamed this incident. The offender had threatened to jump from a bridge the day before. She reported having recently broken up from a relationship, that she was suffering significant financial stress and that her mother was encouraging her to suicide. The offender was detained at hospital pursuant to the provisions of the Mental Health Act 2007.

22. On 13 August 2020 the offender was assessed by a psychiatrist, Dr McDougall, who continued the offender’s anti-depressant medication and prescribed topiramate as a mood stabilising medication.

23. On 19 August 2020 the offender telephoned her psychologist, in distress about having given up her children’s care. The offender complained that the mood stabilising medication which she had recently been prescribed was ineffective. She reported hearing voices in her head and that she had not slept for three days.

24. On 20 August 2020, YB stayed at the offender’s home. They had met on a dating site on 17 August 2020. YB noticed that the offender had cuts on her face and neck which were healing, but were not yet scarred. YB arrived at about 8 pm on 20 August 2020 and stayed until the offender told him to leave at about 1 am on 21 August 2020.

25. On 20 August 2020, the DCJ caseworker spoke to the offender on the telephone at about 11:30 am. Thereafter, he rang the mental health line of the Local Health District to refer the offender. He reported that the offender was slurring her speech, that she had taken extra prescription medication and that she had self-harmed.

Deceased’s movements on the day before her death

26. On 21 August 2020 the deceased went to a club with MK sometime after 10:10 am. There, they consumed a number of alcoholic drinks. They arrived home shortly before 1:00 pm. They each had a vodka drink and sat out the front of MK’s house.

27. After an hour or so, MK’s friend VS arrived. VS drank water while MK and the deceased had another alcoholic drink. The deceased left later that afternoon.

28. At 5:52 pm the deceased messaged her daughter EF on Facebook and asked what time she could call. EF called the deceased at 7:14 pm and they spoke for about 35 minutes.

29. On 22 August 2020, MK tried to contact the deceased without success, so she walked to the deceased’s house to check on her. Shortly before 10:40 am on 22 August 2020, MK walked around to the back door which she found open and let herself into the house. MK walked into the deceased’s bedroom and saw her on the bed. MK saw blood everywhere. The pillow beside the deceased was red. The deceased’s top was pulled up so that her stomach, but not her breasts, was exposed. MK put her hand on the deceased’s stomach and could feel that she was cold. She knew the deceased was dead. At 10:40 am MK called 000 and reported what she had seen.

Crime scene

30. Police attended the scene at about 1:20 pm and made observations of the deceased. She was lying on her back on the left side of the bed. Her right arm was across her chest with her index finger pointing towards a large laceration across her neck, with her finger inside the laceration.

31. A blood-stained knife was positioned on the inside cover of an open book on a bedside table to the right of the bed. The knife was out of reach from where the deceased was laying. The knife was similar to other knives located in the wooden knife block of the deceased’s kitchen.

32. There were large amounts of blood beneath the deceased. There were blood stains on her clothes, on a pillow on the right side of the bed and other parts of the bed.

33. Three coffee cups, in which there was liquid which looked like coffee, were located in the deceased’s lounge room and were subject to analysis. A black coffee cup was analysed. The offender’s and the deceased’s fingerprints were located on this cup. The deceased’s DNA was located on this cup. A swab from a white cup with no handle found in the deceased’s lounge room had DNA belonging to the offender on it. Only the offender’s fingerprints and DNA were found on this cup. A white cup with a handle was analysed. It contained the DNA and fingerprints of the deceased.

34. The offender’s fingerprints were found in multiple locations throughout the house, including the front entrance, the internal door frame and the main bedroom door. Cigarette butts found in the deceased’s bedroom contained the offender’s DNA. A blood-stained towel was located in the bathroom. The offender’s DNA was found on a blood stain on the deceased’s lounge and on blood stains on the doona and pillow in the deceased’s bedroom.

Cause of death

35. The post-mortem notes the following:

1. Cause of death - sharp force injuries to the neck.

2. An incised injury to the front of the neck with a defect in the anterior larynx and transection of the left external and left anterior jugular veins.

3. There was a penetrating sharp force injury to the left upper neck which penetrated the left side of the oropharynx.

4. The vascular injuries would have resulted in significant and sustained bleeding, which is supported by the presence of extensive blood staining on the clothes and bedding where the deceased was located.

5. There was evidence of haemaspiration (breathing in fresh blood) in the lungs, in keeping with being alive and actively breathing at the time the neck injuries were inflicted.

6. Features of external pressure on the neck (manual strangulation) were identified with petechial haemorrhage to the outer eyelids, conjunctival mucosa of both eyes and the oral mucosa, an acute fracture to the right superior thyroid cornu with associated fresh submucosal haemorrhage, as well as macroscopic and microscopic acute haemorrhage without associated fracture of the right hyoid bone.

7. There was a 17.5 cm long laceration to the inner surface of the right arm and another 32 mm long superficial incised injury to the left mid-forearm and an abrasion to the right shoulder. The location and nature of the sharp force injuries to the forearms may represent a ‘defence’ type pattern of injuries, where the arms are raised to protect against inflicted injuries.

8. The appearances of the penetrating left upper neck injury suggest that it was caused by a single edged bladed implement. There are no distinctive features of the incised injuries to indicate what inflicted them.

9. Toxicology testing detected the presence of cannabinoids, benzodiazepines, pholcodine and quetiapine at levels not considered contributory to the death.

10. There was a 70 mm long ‘U’ shaped superficial incised wound creating a flap on the nose measuring 40mm down the left side of the dorsum and curving around the apex of the nose a further 30mm with a flap depth of 25mm exposing underlying cartilage.

36. Between 22 February 2020 and 20 August 2020, the deceased was prescribed temazepam, diazepam, quetiapine and escitalopram. The diazepam and quetiapine were used by the deceased as a sleeping aid, and were detected in the deceased’s post-mortem blood in the therapeutic range. These drugs have a sedating effect. Cannabis was also detected. A bong and a small pink bowl were located inside the television cabinet in the deceased’s unit. The deceased was known to occasionally use cannabis.

The offender on 21 August 2020

37. The offender had contact with the following people throughout the day on 21 August 2020.

Police Station

38. At 3:09 am the offender telephoned a police station and spoke to someone for approximately 6 minutes about receiving harassing phone calls.

Treating psychologist

39. The offender exchanged numerous messages with her psychologist throughout the morning until 1:12 pm. At 3:22 am the offender sent the following message to her psychologist:

“Now finally after a lengthy call to mental health so I could stop crying and a shower. I finally got to sleep… TK prank called me right on 3. He used to always wake up at three have a smoke go back to bed. He did say anything… and I couldn’t.. but I said... ‘I’m recording everyone time you call me to show the court and everyone what you’ve been doing to me. I’m keeping a record of everything’. In doing so. I’ve kind of broken the avo.. I than called police to note that he called… time… What was said… the cop tried to lecture me about suicide. I‘m too tired to even type I hung up on him. I’m not feeling suicidal. But I’ll admit I definitely going to stop feeling like I want to hurt some people. .. xx sorry about all the texts.”

Clinical Nurse Specialist

40. The offender had telephone contact with a clinical nurse specialist which was recorded as follows:

“She presented with marked pressure of speech and was difficult to interrupt at times. She reported that she had thoughts to cut herself but was resisting the urge to do so. She said she scratched her face yesterday so that guys stop hitting on her… She reported suicidal ideation but denied any current plan or intent. She stated she had been receiving calls from with no one there, which she presumed was her ex TK... She stated she thinks of her children and gets very sad. AB stated her ex is causing her “so much trouble”, a staff member at DCJ is causing her “so much trouble”. She reported feeling abandoned, isolated and alone. She enquired as to whether the mental health service or an NGO could provide face to face contacts several times a week, that she needs a friend and all the help she can get. AB stated that she now thinks that she has three personalities with the youngest Sissy being in her twenties, Omega, an older “dominant female” and [the third] is her usual self. It was noted she reported having three personalities, naming the other two “Sissy” and “Omega”.”

SS

41. Between 4:56 am and 7:03 pm, the offender communicated with SS via Messenger numerous times. SS is the sister of a man who had a relationship with the deceased when the offender was a child. Their conversations related to the offender trying to find out the identity of her biological father. SS sent the offender a link to a Facebook group that locates families.

EF

42. Between 11:10 am and 8:47 pm the offender and EF communicated via Messenger numerous times. The offender sent the following messages:

11:10 am: So… long story short… TK rang 000 and pretended to be one of my doctor’s dealing with my mental health plan .. said I was about to kill myself by eating a bottle of pills.. yeah. That started a lot of trouble… And to be honest I’ve just got that many little things that are going wrong around me it’s fucking ridiculous. How can I just walk over the border. There has to be a way. I’ve already been checked for the big C. I’m clear lol.’

11:49 am: And yeah, I’m not well I’m the head to be honest.

12:22 pm: Yeah of course. I am just struggling. With my own head. My own voices… thoughts… and I’m trying to work out.. Pretty much who the fuck I am without the guard up.

12:46 pm: Hey. Can you do me a favour and look up some low interested…No employment personal loan places for me.

12:50 pm: Around 15-20..000 I’ll need it. Car…lawyer…moving.

1:05 pm: I’ll be able to afford around 350-400 q fn in repayments no problem.

43. The following exchange occurred at about 7:39 pm:

Offender: I know I shouldn’t ask but how is she going? Not that I really give a fuck. Deep down she is my mum.

EF: It’s ok to ask. I’m literally on the phone to her talking about her cholesterol and her vege gardens. She is going good. She is getting older LOL rambles a lot. Did you want to see some pics she put up on FB today? Now she onto juices and fibre.

Offender: Sweet. I dunno. I got a bad feeling today. That esp thing. I might not love how but we do have a connection due to the pain she dragged me through on her side I guess lol. No I don’t want to see her.

44. The offender sent the following message to EF at 8:17 pm:

“These meds are really fucking my body up. Omg literally had four baths today like. Refilled like eight times Lol.”

KS

45. Between 7:25 am and 10:05 pm the offender and KS communicated via Messenger numerous times. KS is the father of LM and, at the time, AB’s children JK and LM were staying with KS. The offender messaged KS about TK calling 000. At 11:11 am the offender sent the following message:

“… My anxiety has gone through the roof and my depression has pretty much forced another personality out from isolation and trauma. I’m already starting to remember things. And it’s scaring the shit out of me to be honest.”

46. The offender and KS were supportive of one another during the Messenger conversations and conversed lovingly about the children.

47. At 11:13 am the offender sent the following message:

“Just reassuring with everyone the plan for the year that we’ve organised. You have the two little ones. The have GH… I visit when I can.. When emotionally stable.”

48. At 5:04 pm the offender sent the following message:

“I’m heading up to the shops to grab dinner. Phones about flat so I’ll talk to you later. Give those boys massive cuddles for me xx”

DCJ case worker

49. At 9:00 am the offender had a meeting scheduled with her case worker from DCJ. At 8:40 am the offender sent a text message to him cancelling the appointment.

ST

50. The offender had contact with her old friend ST via telephone and Messenger. ST and the offender discussed the offender hitchhiking up the coast to see CA. The offender asked ST for a lift up the coast and he suggested asking his brother, as he lived nearby. The offender also asked ST whether she could borrow some money to break her residential lease so that she could move interstate. The offender told ST that she wanted to go visit her friend CA and her kids and new baby and her “broken heart”, about 100 kms away. In the following message the offender stated:

“What I do is none of your business. Just to and be a supportive mate. Just try to remember. I have three people with me at all time. And I know how to defend myself. People should be scared of me.”

DF

51. DF received a call from his friend SB about the offender. DF first met the offender on 20 August 2020. SB told DF that the offender was hysterical, threatening to kill herself and said that she needed help. SB was at work and asked DF to go check on the offender. DF visited the offender at about 1.00 pm and while he was there, the police attended the front door. The offender told DF ‘They think I’m going to kill myself. I got rid of them’. DF stayed while the offender cycled through emotions of crying and talking normally. The offender yelled “I don’t know who I am”. At one point the offender was on the phone talking to ‘FACS’. The offender was rambling about her mum, and appeared to be angry at her. When the offender got off the phone with ‘FACS’, she received a call from a support agency. During that call the offender sat up, changed her persona and spoke normally on the phone. DF stayed for about an hour and then left.

SB

52. The offender had known SB for about 12 months. They met through a dating site and had “hooked up” about 10 times. SB would stay at the offender’s house a few times a week. In August 2020 SB and the offender were in regular text message contact. On 19 August 2020 SB stayed at the offender’s house overnight. The offender gave him a tattoo. SB went to work the following day from the offender’s house.

53. At 2:10 pm on 21 August 2020 the offender sent a text message to SB:

“Hey... I’m feeling better today. Got some stuff sorted out. Plans are finally looking a bit clearer…baby steps.. was gonna see if I could pay you to take me … later this afternoon. Or maybe even just borrow your car for a few hours? I have to go help a Chicky friend.”

54. SB told the offender that he could not, and she replied that it was all good and that she would find a way to get to where she wanted to go. Later that day, the offender sent a text saying that she would have to block his number.

Tobacconist

55. At 5:55 pm the offender attended a local tobacconist which was captured on CCTV. The offender purchased two American Eagle knives and a Plasma lighter. The offender told the shop attendant that the knives were for her boyfriend’s birthday.

56. At 6:30 pm SM arrived at the offender’s house after he finished work. The offender was not at home. SM spoke to the offender on his phone, and she told him that she was at Coles.

Coles

57. At Coles, the offender bought a trolley full of items including steaks, salad, tuna, batteries, wipes, bandages, stockings, shampoo, serum, baby lotion, baby oil, baby bath, dry skin gel, skin therapy, a razor, pumice stone, and a card.

58. SM drove to Coles and picked up the offender. She asked SM to drive her about 100 kms north that evening. The offender told SM that “A friend needs help. She had a miscarriage. Can you drive me so I can look after her kids?” SM agreed to do this.

59. After the offender cooked dinner for her and SM, he said that they should leave, as he had to work the following morning at 5:30 am. The offender said “No I can’t be rushed. I need to have a shower and get ready. I can’t just leave.” The offender told SM not to worry about it. At 7:30 pm SM left the offender’s house and drove home.

60. At 7:41 pm the offender messaged ST ‘So am I getting a lift tonight or mm hitching?’ ST replied ‘Oh shit. I forgot to g you. I couldn’t find anyone sorry. Please don’t hitch.’ At 8:32 pm the offender replied to ST ‘It’s all good I’m def hitching thanks man.’ At 10:28 pm the offender is captured on CCTV footage walking towards the house of NB.

NB

61. At some time between 10:30 and 10:45 pm, the offender knocked on her friend NB’s door. The offender appeared distraught with puffy eyes and looked like she had been crying. NB suggested that the offender come inside, but she replied ‘No, I’ve just had a call from the hospital. They said my Mum has had a stroke and has ten hours left to live. I need to go see my mum for the last time. Can I borrow your car?’

62. NB agreed to lend the offender his car but said that he needed it back in the morning to go to work. The offender replied, ‘I’ll have it back before you wake.’

63. NB gave the offender the keys to his car and she drove away.

Caltex Service Station

64. At 11:16 pm the offender was captured on CCTV purchasing a beef pie and two iced coffees at a service station.

65. At 11:18 pm the offender messaged ST ‘I’m too tired and not thinking straight in on my couch at home going to sleep I’ll stream in the morning.’

22 August 2020

66. At 12:30 am, the deceased’s neighbours, heard a knock at the deceased’s front screen door.

67. One of the neighbours heard muffled voices next door and heard the offender on the other side of the wall asking where things were in the kitchen to make a ‘cuppa’. The offender said, ‘It’s ok I’ve found it.’ The offender was later heard to say something like ‘So you haven’t been working, well that’s good then’. The neighbour heard the muffled voices for about 20 minutes before going to bed.

68. At 12:37 am NB texted the offender and her phone registered in a suburb close to her mother’s house. At 1:00 am NB messaged the offender ‘How long do you think you’ll be?’ and ‘Are you okay?’ The offender’s phone registered in locations progressively closer to her home at 2:06 am, 2:40 am, 2:43 am and 2:44 am.

69. At 2:44 am the offender messaged ST:

“I still can’t sleep. I’m so scared someone is going to come over while I am sleeping. I even brought weapons in (sic) that scared. ST, I need you to move asap. Sorry if this wakes you. If I can’t go to sleep, I’ll call the mental health line.”

70. The offender’s phone then registered at locations even closer to her home at 3:04 am, 3:12 am and 3:25 am.

Police

71. At 4:10 am the offender contacted police complaining about receiving harassing phone calls. At 4:23 am a CAD job was created regarding the phone call made to police by the offender.

72. At approximately 4:20 am, the offender dropped the car back to NB. When NB asked the offender how her mum was, the offender replied, ‘She didn’t make it.’

73. At 9:38 am police attended the offender’s home in response to the earlier call regarding the harassing phone calls. The offender was awake and wearing a grey dressing gown. Police noticed that the offender was using a tattoo gun, and the offender showed police a number of her tattoos and appeared calm and rational.

74. At 10:00 am the offender rang her sister EF and spoke to her about an upcoming Court case she had with her ex-partner TK.

75. At 1:03 pm the offender posted on Facebook:

“Does anyone know a SMP? That use to live [nearby] in the year 1987 … He would have been around mid-20s … blond hair and freckles… It’s a long shot. But I’m trying to find my dad … this is gonna be my third DNA test if I find this guy…”

76. At 2:30 pm the police attended EF’s house and told her that her mother had died. At 4:30 pm the offender rang EF again. The offender noticed that EF was not her usual self and asked if something was wrong. EF replied, ‘There’s something you need to know, but I want someone to be with you when you are told. But you need to know I’m OK, [and everyone] is OK.’ The offender replied, ‘Not my mum, not my mum’.

77. Shortly before 5:00 pm police attended the offender’s residence to tell her about the death of her mother. The offender was sobbing, moaning and crying. The offender told police that she needed a mental health assessment.

The offender’s mental health on 22 August 2022

78. The offender was taken to hospital, but she left at about 6:23 pm. Police then saw the offender walking north along the footpath. At 7:00 pm the offender was taken by police to hospital for a mental health assessment. Whilst being escorted in the rear of a police vehicle, the offender was crying uncontrollably, punching herself in the head and banging her head against the perspex of the rear of the vehicle.

After 22 August 2020

79. On 23 August 2020 the offender was released from hospital and caught a taxi home.

80. On 24 August 2020 the offender was assessed by a psychiatrist Dr McDougall. The offender reported an allergic rash and greater irritability and suicidal ideation on topiramate. The topiramate was ceased and an alternate mood stabiliser, valproate, was commenced.

81. On 26 August 2020, the offender travelled to a local mental health service, and saw a registered nurse and a social worker. The offender reported having three personalities, hearing voices and having difficulties with emotional regulation. Observations were consistent with this report. During the bus ride to and from the mental health service, the offender was sending messages to her sister EF. The offender sent her a photo message of a knife that she had purchased that day.

82. In the days following 21 August 2020, the offender had contact with numerous people whom she messaged about her mental health, her upcoming court case, her children and trying to locate her father.

The offender’s admissions to NB

83. On Saturday 22 August 2020, NB went to the offender’s house and knocked on the front door and windows. NB heard the offender scream ‘fuck off, fuck off, fuck off’. NB called out ‘AB, it’s NB’. The offender called out ‘I don’t care who it is. I just want to be left alone’. NB left.

84. On Sunday 23 August 2020 after 6:00 pm, the offender arrived at NB’s house. NB observed that the offender had bruising on her face which made it look like she had been beaten up. The offender said that the injuries had occurred in the back of a paddy wagon the previous day. The offender told NB that she had killed her mother on the Friday night when she had borrowed his car. The offender reassured him that he would not get into trouble because she had taken steps to prevent detection of his car, as well as steps to avoid being seen and that she had made it look like a suicide. The offender said that she disposed of the knife in a bin. The offender urged NB to delete her as a contact and all of their messages to also prevent him being connected in any way to the death.

85. The offender watched NB delete her as a contact. He also deleted all the text messages between them. He deleted their conversations on Facebook Messenger.

86. NB later told police that he did not believe what the offender had said because she seemed manic and grieving at the time and that he had deleted her contacts and messages merely to humour her.

87. Police later seized the car belonging to NB and located blood stains inside the car which matched the deceased’s DNA.

The offender’s admissions overheard by NA

88. At 10:45 pm on 27 August 2020 the offender was in the dock in the charge room at the police station. The offender was in a dock next to another person NA, who asked her how she ended up in custody. The offender responded:

“I did something bad that made me feel good. I don’t want to hurt myself anymore. I think I’m going to go to gaol for a very long time.”

The offender’s admissions to a Corrective Services Nurse

89. At 10:30 am on Friday 28 August 2020 the offender was brought into the clinic to be assessed by a Corrective Services nurse. He observed that the offender was teary and anxious and saw that she had multiple scars on both arms and legs.

90. During the assessment with the nurse, the following exchange took place:

Nurse:       Are these scars related to self-harm?

Offender:  Yes, yes.

Nurse:       Has this been going on for a long time?

Offender:    Yes, since I was a kid.

Offender:    I’m worried about my kids.

Nurse:       Who’s looking after your kids?

Offender:    I don’t know.

Nurse:       Has your mother got them?

Offender:    (no reply).

Offender:    I’ve killed my mother.

[silence]

Offender:    She can’t hurt me anymore.

The offender’s admissions – statement

91. On 25 August 2020, police attended the offender’s home and took a body worn video statement from her. During the recording the offender said that the last time she spoke to the deceased was in December 2019 when she had a heated phone call regarding a DNA result in relation to the identity of her father. The offender said that the last time she saw the deceased in person was at a time prior to the phone call in December 2019.

The offender’s admissions - ERISP

92. The offender was interviewed by police on 27 August 2020 at a police station. The offender mostly made no comment to questions asked of her. The offender said during the interview, “I get it, why you guys think I did it. I totally do. Do you know how many times I’ve wished my mum dead?” The offender said she had not been to the deceased’s home since October 2019.

Covert surveillance

93. Between 24 and 27 August 2020, a listening device was placed on the offender’s phone. Nothing was said or done by the offender during this time to indicate that the offender was aware of having killed the deceased.

Memory

94. Since the offender’s arrest on 27 August 2020, she has maintained that she does not remember killing the deceased. The Crown cannot exclude the possibility that the offender’s poor recall of the events since that time is genuine. The offender accepts that she killed the deceased and that her actions were voluntary at law.

Exhibits

95. Before me are two exhibits. Exhibit 1 is a bundle of documents prepared by the Crown, tendered without objection. The bundle includes:

1. The Form 1;

2. The signed Agreed Facts;

3. The offender’s criminal and custodial histories;

4. A Victim Impact Statement of EF; and

5. A report of Dr David Greenberg, forensic psychiatrist, dated 31 January 2024

96. Exhibit 2 is the offender’s bundle, tendered without objection. The bundle contains:

1. A report of Dr Andrew Ellis, forensic psychiatrist, dated 22 November 2023;

2. A report of Dr Ellis dated 14 January 2024;

3. Corrective Services NSW Psychology Service Progress Notes dated 31 May 2021 to 6 October 2023;

4. A Short Term Assessment of Risk and Treatability (START) with respect to the offender completed by Ms Lauren Heywood, psychologist, dated 25 August 2023;

5. A letter from Dr David McDougall, consultant psychiatrist, to Dr Louis Trichard dated 13 August 2020.

6. A Mental Health Progress Note by a clinical nurse specialist with respect to AB dated 21 August 2020;

7. A letter from Dr David McDougall, consultant psychiatrist, to Dr Louis Trichard dated 24 August 2020;

8. A Justice Health report by Dr Gordon Elliott, consultant psychiatrist, dated 23 October 2020;

9. Still of CCTV of the offender at a tobacconist on 21 August 2020;

10. Still of CCTV of the offender at a service station on 21 August 2020;

11. A letter to the Court under the hand of the offender dated 1 February 2024; and

12. A Statement of Attainment recording that the offender has completed a Certificate III in Cleaning Operations, dated 13 December 2023.

Evidence

97. I will now summarise some of the documents which have been placed before me.

Exhibit 1

98. The Crown Sentence Summary contains the agreed facts which I have just set out. The offender has no prior criminal history. The offender’s custodial history indicates that she has been disciplined for several minor infractions whilst in custody.

Report of Dr Greenberg dated 31 January 2024

99. Dr Greenberg reported on 31 January 2024 after reviewing the report of Dr Ellis and the records of Corrective Services (to which see below). He did not review the offender, and he relied on his two prior assessments of her on 11 April 2022 and 19 April 2022. Dr Greenberg observed that the offender had been seen by the Corrective Services’ psychology team because of her labile mood, self-harming behaviour and suicidal thoughts. She was provided with supportive and cognitive behaviour psychotherapy and she was medicated appropriately by psychiatric staff. Psychologist Lauren Heywood repeatedly documented dissociative symptoms, but the offender’s later psychologists made no significant mention of dissociation in their documentation. He says that Ms Heywood assumed or made a diagnosis of Dissociative Identity Disorder (DID) or Multiple Personality Disorder and had frequent sessions with AB. Since her reception into custody, Professor Greenberg believes that AB has made gradual improvements in her behaviour and that her mood has stabilised. He notes that she gradually ceased superficial self-harming behaviour (for periods of time) over 2021-2023.

99. Professor Greenberg maintains that AB’s diagnoses are Borderline Personality Disorder (BPD) and comorbid Post-Traumatic Stress Disorder (PTSD). He also diagnoses a Cannabis Use Disorder, but not any other Substance Use Disorder because of the inconsistencies in AB’s reports of alcohol and illicit substances from 30 August 2019 until the time of his assessment in April 2022. From a purely descriptive point of view, she has a history of mixed substance use but did not qualify for the diagnosis. In his view, her use of alcohol and/or illicit substances in the months, weeks and days preceding the offending likely exacerbated her BPD and PTSD and likely had a disinhibiting effect on her behaviour. Further, Professor Greenberg was of the view that she had long-term mixed substance use problems.

100. Professor Greenberg agrees with Dr Ellis that dissociation is a symptom which is common in BPD and PTSD, but does not agree, based on his research, that topiramate has been reported to cause dissociation. He says that some individuals with BPD may have transient, stress-related paranoid ideation or dissociative symptoms and that those with PTSD may have feelings of detachment or estrangement from others, which is a symptom of dissociation.

101. In Professor Greenberg’s opinion, AB’s “voices” are her own thoughts and she uses them as a coping mechanism during times of stress. They are real phenomena to her, but are not true auditory hallucinations. AB, in his view, does not have a psychotic disorder with commanding hallucinations. He observes that there is inconsistency in her self-reports about her voices, and believes that they are more consistent with depersonalisation and possibly derealisation, exacerbated by stress and substance use in the month of August 2020. These symptoms are experienced as periods of absentmindedness, excessive daydreaming, memory problems or feeling that one is in a dream or bubble. If one accepts that AB was abusing various illicit substances during the period prior to the offending, she was likely to be in an intoxicated state to some degree at the time of offending.

102. As to Dr Ellis’s hypothesis that AB suddenly decompensated when she was in her mother’s home, Professor Greenberg observes that AB had long-standing problems with her mother. She had just engaged in purposeful, goal directed behaviour, including the purchase of knives and giving false reasons for borrowing a car which in his view militates against her being in a dissociative state at the time of the killing. In his opinion, when AB fully appreciated the gravity of her situation, she either consciously or unconsciously pushed the memories of the killing and events proximate to it out of her consciousness, and claimed that she had very limited islands of memory surrounding the offending. Even if she had some dissociative symptoms at that time, in Professor Greenberg’s opinion AB could still reason with a moderate degree of sense and composure about whether the act as perceived by reasonable people was wrong.

103. Professor Greenberg’s opinion is that, from a psychiatric perspective, AB has mitigating factors which explain her offending. Dr Greenberg holds similar views to Dr Ellis that AB comes from a significantly traumatic and turbulent family background. She reported that her mother was addicted to drugs and engaged in sex work for drugs. Her mother neglected her during childhood. She has a history of being sexually and emotionally abused as a child for which she attributed blame to her mother. She has a long, traumatic history of self-harming behaviour, which can be seen as part of her BPD. Her subsequent attachments and relationships were dysfunctional and affected by her traumatic background. These likely precipitated her deterioration and decompensation in late 2019 and 2020. She has long-standing diagnoses of BPD and PTSD, and she had mental health impairments at the time of offending. AB likely had dissociative symptoms as part of her disorders in the period surrounding the offences, although Professor Greenberg is of the view that they were not causally related to the offending.

104. Finally, Professor Greenberg notes that the offender seems to have settled recently, after extensive psychiatric and psychological support in custody. However, he observes that from a psychiatric perspective, the treatment of personality disorders is particularly challenging and AB is likely to require long-term psychiatric, psychological and social management, interventions and support.

Victim Impact Statement

106. On the application of the Crown, I take into account the Victim Impact Statement of EF, the deceased’s daughter and the offender’s sister, pursuant to s 30E of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), in connection with the determination of the punishment for the offence, as an aspect of the harm done to the community.

107. EF has been tormented by the death of her mother at the hands of her sister. Understandably, she says that her life will never be the same. From her viewpoint, she having had a different childhood than her sister, her mother was kind and devoted. She has been robbed of having the mother she loved so dearly. Her tribute to her mother is poignant and heart wrenching.

108. EF speaks briefly of the trauma suffered by her mother in her lifetime, confirmed by the Agreed Facts, which likely explains some of the things that will be said about the deceased in this judgment. However, no person is one-dimensional, and I accept that there was a deep, enduring and loving connection between EF and her mother which has been forever broken by the tragic and senseless events of 22 August 2020.

Exhibit 2

Dr Ellis’s report dated 22 November 2023

109. Dr Ellis provided an updated psychiatric report with respect to the offender on 22 November 2023. He had previously provided reports (which are not in evidence in these proceedings) on 29 August 2021 and 1 December 2021. Dr Ellis conducted three clinical interviews, one in person and two by audio-visual link (AVL) over five hours. He was provided with documents contained in the police brief of evidence.

110. Prior to the offending, AB was taking the antidepressant paroxetine 40 mg daily prescribed by her general practitioner and had switched to a mood stabiliser, sodium valproate, 800 mg daily. She was under the care of the community mental health team and was prescribed her usual psychiatric medication in custody. Dr Ellis noted that by the time of his third review, the offender had commenced weekly sessions with a psychologist and had been seeing a psychiatrist, Dr Dorney. She was prescribed the antidepressant venlafaxine 300 mg daily, clonidine and metformin.

111. AB reported that her mood and mental state had improved since entering custody. She told Dr Ellis that regular therapy and her current medication were helping, but that if she was not prescribed her medications, she would be dead due to depressed moods and suicide attempts.

112. The offender reported that she commenced self-harming at age 6, and last cut herself in September 2022. She told Dr Ellis that when cutting, she was dissociating and wanting to die, and that self-harm was her only way of coping. However, AB said that she now has coping mechanisms, including improved diet and sleep, and regular exercise. She said that she no longer had ideas of suicide and that her self-harming behaviour had stopped. She said that she was turning her attention to the future, hoping to be a grandmother one day.

113. AB reported that she saw a psychologist from 25 February 2020, attending sessions both in-person and via telephone. She was diagnosed with BPD and PTSD. Dr Ellis noted that AB reported hearing voices. She reported dissociative experiences, self-harm and disturbing dreams. When she presented to hospital on 2 May 2020 after cutting herself, a urine drug screen was positive for cannabis, cocaine and methamphetamine. On 1 August 2020 she was taken to hospital by a friend. She shouted in the emergency department and told police that she would assault a nurse. Contact with hospital and psychologists thereafter was noted. Dr Ellis also noted Dr Dorney’s diagnoses of BPD and complex trauma PTSD following severe childhood abuse, and that dissociation was a feature of her presentation, with which he agreed.

114. Dr Ellis summarised the offender’s background and development. She was born premature and was of low birth weight. Her mother was using heroin during pregnancy. She does not know her father and has one older half-sister. The offender was placed in four foster families during her childhood. Her mother cared for her between the ages of 4 to 12. AB reported that her mother was a heroin addict and a “monster” who allowed paedophiles to take advantage of her. She said that her mother would have sex in front of her, physically abuse her and would frequently tell her that she ought to have died at birth.

115. AB reported enjoying school. However, she did not finish Year 12, as she moved to Thailand with her aunt and uncle (with whom she lived between the ages of 12-18) at age 18. Her uncle soon forced her to leave the home. AB told Dr Ellis that she was homeless in Thailand for one year before returning to Australia.

116. AB reported that she had an abortion at age 18 following a sexual assault. She had her first child with her boyfriend of three years, when she was the victim of domestic violence. Her second child was born following a one night stand and the father did not want any involvement in raising the child. Her third child came from a relationship of two years.

117. The offender could only provide a partial history for the events the subject of these proceedings. By Dr Ellis’s third interview, the offender accepted that she had killed her mother, although she still could not remember it occurring. She found it hard to say whether her recollections of events were based on memory or on the material she has read in the brief of evidence.

118. AB identified a number of stressful events that had accumulated by August 2020. She was depressed and gave up custody of her children to different family members. She was smoking cannabis on a regular basis and was using methamphetamines from 6 August 2020. She had broken up from a short-term relationship. AB said that she had last spoken to her mother in December 2019 when they had argued. She said that her mother had lied to her about the identity of her father and that they had exchanged hateful words. Her mother would never disclose the identity of her father, despite her attempts to have several men undergo DNA testing.

119. The offender reported that in August 2020 she began to hear voices and experience gaps in her memory which she called blackouts. She would wake up to find herself in different clothes and places. She was not sure if she had blackouts before or after drug use. She was sleeping with a knife to protect herself. She could not recall borrowing a car from NB or driving to her mother’s house. Her next memory was on 22 August 2020 talking to her sister. She recalled police coming to see her. Her last blackout was on 16 September 2020 before her first assessment with Dr Ellis. She still hears voices in custody, but they are now of shorter duration.

120. With respect to substance use and addiction, AB told Dr Ellis that she began smoking tobacco at age 11 and that this continued variably. She reported cannabis use from age 18 and occasional alcohol use, experimenting in her twenties with ecstasy, speed and cocaine. She denied consuming drugs intravenously or the use of heroin, mushrooms, synthetic drugs or abusing prescription medication. The offender reported completing a parenting course for drug and alcohol issues in 2013.

121. AB did not report any significant medical history, aside from experiencing multiple head injuries, including one incident that resulted in hospitalisation at age 19. She said that her mother had a history of psychiatric treatment for BPD, bipolar disorder and schizophrenia.

122. Dr Ellis observed that the offender’s mental state had improved over the three interviews. She answered questions directly. She endorsed chronic low self-esteem, changing mood, chronic thoughts of self-harm, intrusive memories of traumatic events in her past, memory problems and hearing voices. She did not present with psychotic symptoms.

123. During the third interview with Dr Ellis, the offender told him that her plea to murder was the appropriate response for her actions. She said that she feels that she must accept responsibility for what she has done. She said that accepting responsibility was the right thing to do to set an example for her children. She said that the victim "was my mother, despite what she did to me", and "the fact I took a life means I need to be in prison". The offender acknowledged that in order to rehabilitate, she must abstain from alcohol and drugs and that she will require professional help indefinitely. She wants to look after her family, stay healthy, earn the trust of other people, enrol in courses and get an education.

124. In Dr Ellis’s opinion, the offender meets criteria for a diagnosis of Substance Use Disorder (in remission in a controlled environment), BPD and PTSD. AB described symptoms of dissociation which were most prominent in August 2020. Dissociation refers to the separation of mental processes and can be experienced as depersonalisation (feeling outside your own body), derealisation (a sensation that events are not real), dissociative amnesia (where events cannot be recalled, particularly if they occurred during times of stress) and dissociative identity (where a sense of individual coherent personhood is disrupted). Dissociation is a common symptom in BPD, PTSD and can be substance induced. Dr Ellis says that both stimulant drugs and topiramate have been reported to cause dissociation. In his opinion, it is likely that the offender’s underlying unstable personality structure makes her more prone to dissociation in the context of substance abuse. He did not diagnose DID.

125. Dr Ellis is of the view that AB suffers from mental health impairments (BPD with features of dissociation and PTSD). They are present now, and were so at the time of the allegations. Both are clinically significant conditions for diagnostic purposes which impaired her thought by distortions of self-identity and relationship sensitivity. They have impaired her emotional well-being, judgment and behaviour. Her presentations to hospital over August 2020 indicate the significant extent of her decompensation at the time of the murder.

126. Whilst these diagnoses were extant at the time of the offending, Dr Ellis observed that it is difficult to establish the offender’s exact state of mind at the time of the murder because she reports no memory of the events. Inferences about her behaviour must therefore be drawn. Dr Ellis observed that her behaviour in the lead up to the crime indicates purposeful activity that required planning, conversations with others and concentration.

127. One hypothesis is that the offender formed an intention to kill her mother on 21 August 2020 before travelling to her house. Her purchase of knives and lying about the reason to borrow the car supports this hypothesis.

128. Another hypothesis is that she went to her mother’s house to confront her about an issue such as the identity of her father, rather than to kill her. A knife may have been taken to threaten, scare, self-harm or for self-protection. One may not have been taken. In Dr Ellis’s view, the available evidence suggests that the initial contact with her mother was civil when she let AB inside and they had a smoke and coffee. It is possible that during the conversation with her mother sensitive personal issues were raised and they had an argument resulting in the killing. The offender had longstanding anger directed towards her mother. Memory of past traumas can be reactivated and be associated with fearful, self-protective and angry emotions associated with those traumatic events. Her mother's actions were directly related to her past traumas in her mind, which could lead to emotional dysregulation with poor impulse control.

129. The offender’s actions following the death of her mother also indicate purposeful activity. While there was some disorganisation of planning, for example the cleaning of the scene was not complete, her overall behaviour indicates some planning to hide her actions, which is consistent with a relatively composed knowledge of wrongful behaviour.

130. The offender’s amnesia for events might be explained by substance-induced dissociative amnesia. However, lack of memory for events does not equate to lack of intentional behaviour at the time of the events themselves. Other explanations for the lack of memory are dissociative amnesia related to her underlying mental disorders or a conscious unwillingness to discuss the events. There is no empirical way to determine which is the case and it may be a combination of causes.

131. On the basis of AB’s psychiatric history, her reported symptoms before the homicide and the observations of her behaviour before the time and closely after, Dr Ellis is of the view that a court could find that her psychiatric state materially contributed to the offending.

132. Dr Ellis observed that the offender is currently engaged in treatment and shows good cooperation with providers and motivation to continue, which are positive prognostic factors. Despite a severe and long-term personality disorder and PTSD, Dr Ellis is of the view that continued treatment will benefit AB and help her to gain greater insight into her offending, better emotional regulation and control of impulsive reactions. General rehabilitation in terms of education, vocational training and employment will also be of assistance. Parenting courses, once she is able to move to a community setting, will also be of benefit. She would also benefit from substance use interventions being integrated with her overall mental health treatment.

133. As to remorse, Dr Ellis noted that AB made statements that indicated she accepted her actions, despite not being able to recall them. She made no statements which caused him concern that there was an absence of remorse or lack of empathy towards the victim. AB was motivated to engage in rehabilitation to be an example to others. Dr Ellis’s opinion is that AB’s consistent engagement with rehabilitative and treatment options is evidence that she is motivated to improve the quality of her life.

Dr Ellis’s report dated 14 January 2024

134. Dr Ellis prepared an addendum report addressing the vulnerabilities that AB may face in the custodial environment. He noted that this is AB’s first experience of custody.

135. In his opinion, the offender’s personality disorder means that she has an unstable self-identity, which creates a greater risk of being adversely influenced by others. Dr Ellis noted the high rate of suicides in custody generally, and that the offender’s diagnoses are associated with the risk of suicide, especially in a stressful custodial setting where there is less access to treatment and contact with personal supports. Dr Ellis noted that the offender is receiving appropriate multi-disciplinary treatment, with which she is engaging positively.

Corrective Services NSW/GEO Psychology Service Progress Notes

136. Forty-one pages of Corrective Services Psychology progress notes detailing treatment contact with the offender between 31 May 2021 and 6 October 2023 were tendered. These notes disclose a consistent history of AB experiencing mental health symptoms since being held in custody, which appear to have settled somewhat. The offender has engaged regularly with psychology and psychiatric services in custody. Her almost fortnightly sessions have explored complex grief, her relationship with her mother and sister and her adjustment to custody, including being separated from her children.

136. The notes reveal that the offender has reported ongoing depressive and anxious thoughts and dissociative symptoms (since childhood) which have led to chronic thoughts of self-harm and suicide. Despite this, the offender denied an intention to kill herself, nominating her children as protective factors. She reported distress when thinking about court proceedings and the length of her sentence, and one of her psychologists, Ms Heywood, recommended that she be monitored closely around key court events.

137. The offender gave a history of her childhood which is consistent with that provided to Dr Ellis. She told Ms Heywood that as a result of her mother’s heroin addiction and sex work, she was often left with no food or other resources in the home. AB had to prompt her mother buy food for her at the age of 6. She had to care for herself and worried about her mother’s drug use. Her mother would solicit AB out to men (her own clients) for money. She told Ms Heywood that she did not feel angry as a child, but rather was scared all the time. There was episodic homelessness. After leaving her aunt and uncle’s home in Thailand, she lived with other sex workers until she saved enough money to buy a plane ticket back to Australia. She had attempted suicide on several occasions. AB also described a complex relationship with, and feelings toward her sister, who lived with their grandmother as a child.

138. Whilst AB’s mood improved from late 2021, she continued to experience dissociative symptoms and had ongoing suicidal ideation. In 2022, her mental health fluctuated. She experienced isolations due to COVID-19. In late 2022, she cut her throat (superficially) with a razor. Through 2023, AB appeared to be stable, but there was still discussion about a periodic increase of dissociative symptoms and suicidal ideation. By October 2023, there were no recent incidents of self-harm and AB expressed a motivation to refrain from such behaviour in the context of having access to coping strategies.

Short Term Assessment of Risk and Treatability (START)

140. A risk assessment was completed on 25 August 2023 by Corrective Services psychologist, Lauren Heywood. Ms Heywood determined that the offender presents as a low risk to others and that she is also at low risk of substance abuse, self-neglect and being victimised. Ms Heywood assessed the offender as having a moderate risk of self-harm/suicide.

Letter from Dr David McDougall to Dr Louis Trichard dated 13 August 2020

141. Dr McDougall, consultant psychiatrist, reported to Dr Trichard after assessing the offender on 13 August 2020 following her hospital presentation at the beginning of August. Dr McDougall reported that the offender presented as highly emotionally dysregulated and talked about a strong intention of suiciding. Dr McDougall noted that the offender had a dysregulated affect and that her thought content was preoccupied with past trauma and current relationship difficulties. He noted her dysfunctional background. He assessed the offender as having a chronic elevated suicide risk by virtue of a BPD diagnosis, but she was not psychotic. Dr McDougall prescribed the offender topiramate and continued treatment with paroxetine.

Mental Health Progress Note by the clinical nurse specialist

142. The clinical nurse specialist prepared a note of a telephone conversation that he had with the offender on 21 August 2020. She presented with marked pressure of speech and was difficult to interrupt. She reported suicidal ideation but denied an intent to act upon it. The offender reported feeling abandoned, isolated and alone, and that she now had three personalities. She was not tolerating topiramate and her psychologist believed that AB required an urgent medication review. She was assessed at a moderate risk of suicide and deliberate self-ham, but as a low risk of harm to others.

Letter from Dr McDougall to Dr Trichard 24 August 2020

143. Dr McDougall saw the offender by Skype on 24 August 2020. An allergic reaction to topiramate was noted and the offender was told to cease its use. Dr McDougall observed that the offender had mild to moderate depressive symptoms on presentation following the death of her mother. She had a chronic risk of suicide by virtue of her BPD diagnosis but was not at imminent risk. He recommended commencing valproate and monitoring by Acute Care Services.

Report of Dr Gordon Elliott dated 23 October 2020

144. Dr Elliott assessed AB by AVL on 21 October 2020, two months after the murder of her mother. He reviewed her medical records which confirmed the history of mental illness and disadvantage set out in the reports of Dr Ellis and Dr Greenberg.

145. In the months following her arrest, AB had several interactions with psychiatrists complaining of symptoms of BPD and PTSD and episodes of dissociation.

146. AB told Dr Elliott that she had been seeking mental health care in the month of August 2020, as she had been self-harming and fearful of her safety. She told him that she had purchased knives which she kept in the house, sleeping with one close to her.

147. Dr Elliott found no evidence of a chronic psychotic illness. Emotional dysregulation was the chief feature of the interview. As to her account of having identities speaking to her, Dr Elliott was of the view that it was more consistent with trauma related pseudo hallucinations rather than genuine psychotic hallucinatory experiences of schizophrenia. There was a strong suggestion that these symptoms were a re-experiencing of her childhood trauma.

148. In Dr Elliott’s opinion, AB presented with characteristic features of BPD and a complex form of PTSD, exacerbated by long-term cannabis use. He believed that she required long-term psychological care, specifically dialectical behavioural therapy and a treatment programme directed at her BPD and self-harm.

Letter from AB dated 1 February 2024

149. In a letter to the Court, the offender says that she has lived with guilt, grief, remorse and self-loathing since the murder of her mother. She acknowledges that no person has the right to take a life.

150. AB says that she was mentally unstable at the time of the incident. She was trying to end her own life.

151. AB says that she takes responsibility for her crime and apologises to her family. AB says that she understands that they may never forgive her, as she will never forgive herself.

152. I do not doubt that, like Orestes after killing his mother Clytemnestra, she will be forever haunted by her actions of 22 August 2020.

Concurrent evidence

153. Dr Ellis and Professor Greenberg gave evidence concurrently via AVL. There was little dispute between them.

154. With respect to the offender’s apparent amnesia of events, both agreed that the offender experienced dissociative symptoms. They agreed that it is not scientifically possible to determine why she has no recall of the offending behaviour or surrounding events, but that it was likely attributable to a psychogenic component arising from the trauma of killing her mother, mixed in with the nature of her established BPD and PTSD, possibly exacerbated by the ingestion of illicit substances.

155. Both agreed that immediately after the event, the offender had recall of the offending behaviour, as evidenced by her purposeful activity and her conversations with persons following the event, when she was not exhibiting dissociation. They agreed that topiramate, her mental impairment and the ingestion of stimulants all have associations with dissociation. Professor Greenberg believed that anger, associated with BPD and PTSD contributed to AB’s decompensation just prior to the killing. Both agreed that it was impossible to know her state of mind at the time of the murder, as there were no witnesses, and the offender had no recall of the event. However, they believed that at the time she was severely emotionally dysregulated, particularly in light of the significant documented mental health issues she was having throughout August 2020.

156. Professor Greenberg clarified his view as expressed in his report that dissociation did not play a direct role in the offending. By that, he meant that AB was not in a state of automatism. He accepted that she may have had an episode of dissociation at the time, but not of such significance that it impacted her awareness or understanding.

157. As to the offender’s rehabilitation, Professor Greenberg observed that assuming that she complies with all recommended treatment, there are positive features. She is likely to benefit and improve over time. Dr Ellis agreed.

Factual findings

158. Although there are Agreed Facts in this matter, there are two outstanding factual issues that require findings by the Court. First, I must determine the extent of any planning or pre-mediation, and second, the extent to which the offender’s mental health impairment may have materially contributed to the offence.

159. Mr Campbell, who appeared on behalf of the Crown, submitted that several inferences could be drawn from the Agreed Facts which would satisfy the Court that the offender formed an intent to harm and kill her mother before leaving her home. Some of the Agreed Facts relied upon by the Crown in making this submission include:-

• The offender’s long-standing animosity toward her mother;

• The offender’s disclosure to her psychologist on 21 August 2020 that “…I’ll admit I definitely going to stop feeling like I want to hurt some people”;

• The offender purchased two knives on 21 August 2020;

• The offender gave false reasons as to why she needed to borrow a car or be given a lift;

• As she drove to her mother’s home, the offender texted a friend that she was at home on the couch, and told them that she was still at home when she was in fact driving back to her home, which in the Crown’s submission suggests that she was crafting an alibi;

• The offender told NB that she had taken steps to make the murder look like a suicide and avoid detection;

• On 27 August 2020 the offender was overheard saying “I did something bad that made me feel good, I don’t want to hurt myself anymore. I think I am going to gaol for a very long time.”; and

• On 28 August 2020, the offender told a nurse that “I’ve killed my mother. She can’t hurt me anymore.”

160. The Crown’s primary submission is that if the offender formed the intent to kill her mother prior to leaving her home, and then travelled to her mother’s home to carry out that intent, then this is a grave instance of murder involving pre-meditation and attempts to conceal her involvement. Alternatively, the Crown submitted that if the Court is not satisfied beyond reasonable doubt that the offender formed such an intent before leaving home, then the Court would be satisfied beyond reasonable doubt that an intent to kill was manifest at the time that she killed the deceased. In making this submission, the Crown relied on the wounds and injuries sustained by the deceased, including the defensive wounds to her arms and the evidence of manual strangulation.

161. Mr Watts, who appeared on behalf of the offender, submitted that I could not find that the offender formed the intention to kill her mother prior to leaving her home beyond reasonable doubt. Rather, he submitted that when considering all of the available evidence, including the offender’s inability to provide an explanation of her actions due to amnesia (which the Crown conceded cannot be discounted, and which I accept on the balance of probabilities), it is reasonably open to infer that the offender determined sometime between 8:17 pm and 10:30 pm on 21 August 2020 to go and visit her mother for a reason other than to murder her. For example, she may have wanted to confront her as to the identity of her biological father, which was one of the issues that was pre-occupying her at a time when she had been suffering mental health impairments, abusing illicit substances and was experiencing an adverse reaction to the prescribed mood stabiliser topiramate.

162. Mr Watts conceded that it could be found beyond reasonable doubt that AB formed an intent to kill at the time that she committed the offence. In making this submission, Mr Watts relied on a number of matters set out in the Agreed Facts including the evidence demonstrating that AB was experiencing the symptoms associated with her diagnoses (which is supported by Dr Ellis in his report, and by both Dr Ellis and Professor Greenberg in concurrent evidence), as well as the observations of several people at about the time of the offending. I note that Dr Greenberg does not dispute that at the time of the offending, the offender had mental health impairments, which I accept. On the balance of probabilities, I find that at the relevant time, the offender was abusing some indeterminate illicit substances and was unhappy with the effects of topiramate, which likely contributed to her episodes of dissociation.

163. I find that at the time of the incident, the deceased and the offender had a long- established dysfunctional relationship and that the offender believed that her mother would not tell her the identity of her biological father. I find that this was an issue pre-occupying the offender over the several days leading up to the offence. I find that she was particularly unwell on the day of the offending, evidenced by the offender’s communications with various persons and her interactions with mental health professionals. She exhibited, at least, unstable mood, dissociation and self-harm behaviour. I cannot find that her expressed reasons to go to her mother’s locale were lies pointing only to an intention to murder her mother. The “false” reasons may equally have been expressed so others would not interfere with her intention to confront her mother about the identity of her father or for some other unknown reason.

164. As to the offender’s purchase of two knives late in the afternoon of 21 August 2020, I attach no weight to what she told the sales assistant at the tobacconist. It may be that she bought the knives to self-harm and did not wish to disclose that information to the tobacconist for obvious reasons. She may have indeed bought them for her boyfriend’s birthday or for self-protection, as she had been sleeping with a knife. Further, the Agreed Facts speak of there being a blood-stained knife, similar to other knives located in the deceased’s knife block, positioned close to where the deceased was laying when the police found her. I infer that this was the weapon used in the murder, and that a knife bought at the tobacconist was not the murder weapon.

165. I do not find beyond reasonable doubt that the offender formed the intent to kill her mother prior to leaving her home, and then travelled to her mother’s house to carry out that intent. I find that there is another reasonable hypothesis available on the evidence, i.e., a desire to confront her mother about issues in her childhood and the identity of her father.

166. I find on the balance of probabilities that the offender was permitted entry into her mother’s house by her mother, and that they had at least a twenty-minute civil conversation in which they casually drank coffee and smoked cigarettes. On balance, I find that a conflict then occurred. I find, beyond reasonable doubt, that the offender then formed an intention to kill her mother, and an episode of extreme violence occurred, which is evidenced by the stab wounds to the deceased’s neck and the evidence of strangulation. The deceased attempted to stave off the attack, which is evidenced by the defensive wounds on the deceased’s forearms. She would have been terrified by the attack.

167. By her plea, and confirmed by Mr Watts, the offender accepts that the time of the murder she knew the nature and quality of her actions and that they were wrong.

168. Mr Watts submitted that there was a causal connection between AB’s mental health impairments and the offending, and that her mental illness should be included in the determination of objective gravity.

169. In Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247, Johnson J said at [112]:-

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

170. More recently, in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, Beech-Jones CJ at CL, N Adams J and Cavanagh J definitively dealt with the concepts of both objective seriousness and moral culpability and their interaction. The Court said at [95] – [96]:-

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

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

171. In the present case, I have concluded that AB’s mental illness ought not to inform the question of objective seriousness. Rather, I will take it into account when determining her moral culpability. Here, the nature of AB’s long-standing mental health impairment was BPD and PTSD with symptoms of dissociation and chronic suicidal ideation. She was apparently functioning in the community, albeit with psychological and psychiatric intervention, in the months leading up to the murder. Dr Ellis and Professor Greenberg both agreed that the offender’s actions following the death of her mother indicated some purposeful activity. She cleaned the area near the murder and made phone calls to the police. This is consistent with a relatively composed knowledge of wrongful behaviour. Although she presented with acute emotional distress after the death of her mother, the distress was intermittent with periods of lucidity, and she was able to drive back home and return the car. It is not possible to know the offender’s mental state at the time of the offending. Whilst I accept that the offender’s mental health conditions impaired her decision making, I do not find that it caused an inability to overcome the impulse to commit the offence, which she knew to be wrong.

Objective Seriousness

172. I have taken into account the Agreed Facts, the additional facts that I have found and the submissions of counsel noted above.

173. I observe that there is no obligation on a Court to indicate where on a notional scale of objective seriousness the offending lies. In DH v R [2022] NSWCCA 200, Yehia J said at [58] – [60]:-

“[58] Some degree of confusion remains as to whether a sentencing judge is obliged to indicate “where on the scale of seriousness each offence falls” when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid- range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay.

[59] To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation:

“is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formulation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”.

[60] The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.” (endnote omitted) [emphasis in original]

174. In deference to counsels’ submissions which focussed on the factors relevant to objective seriousness, but made specific submissions about a notional range, I will make a finding on a notional scale.

175. I have taken into account the legislative guideposts of the maximum penalty and the standard non-parole period.

176. As I have said, I cannot find beyond reasonable doubt that the offender formed an intention to kill her mother prior to leaving home and that she purchased the knives to achieve that purpose such that the murder was pre-meditated. However, I am satisfied beyond reasonable doubt that after a period of calm interaction with her mother, the offender stabbed her mother, intending to kill her. In my opinion, taking all matters into account, the offending is objectively serious and falls somewhere below mid-range. However, as will shortly be seen, I am satisfied that the offender’s moral culpability is reduced given the co-relationship between her mental health issues and her significant background of disadvantage and the commission of the offence.

Aggravating Factors

177. The Crown submitted that the offence involved violence and the use of a weapon, although he conceded that these are common features of a murder charge, a submission with which I agree. The offence was committed in the home of the deceased, in the very place in which she was entitled to feel safe, which I accept.

178. The Crown submitted that as the post-mortem showed quetiapine and diazepam in the deceased’s blood at a therapeutic level, and that both drugs have a sedating effect, the deceased should be considered to have been vulnerable. I cannot accept this submission. It may be that the deceased took those medications on a regular basis and was experiencing only their usual effects. The Agreed Facts do not disclose the deceased’s psychiatric condition and its manifestations in any detail, so I am unable to draw any conclusion as to the effects of medication other than they were at a therapeutic level.

Mitigating Factors

179. The offender pleaded guilty at the first available opportunity.

180. I observe that to extent that the offender was intoxicated at the time of the murder by the taking of illicit drugs and/or alcohol, I do not take it into account as a mitigating factor: s 21A(5AA) of the Sentencing Act.

Subjective Circumstances

Plea of Guilty

181. The offender pleaded guilty at the committal proceedings and it is agreed that she is entitled to a reduction of 25% pursuant to s 25D(2)(a) of the Sentencing Act.

Prior Criminal History

182. The offender has no prior criminal history, and is therefore entitled to some limited leniency.

Remorse

183. In my opinion, the offender has not satisfied s 21A(3)(i) of the Sentencing Act by providing evidence that she has accepted responsibility for her actions and that she has acknowledged the injury, loss and damage caused by her actions.

184. However, the evidence of Dr Ellis and AB in her letter to the Court suggests that she has accepted responsibility and has an evolving insight into her offending. Dr Ellis noted that whilst he had no expertise in determining whether statements of remorse were genuine, no statements were made during his interviews with the offender which gave him concern that there was an absence of remorse or a lack of empathy towards the victim. The Crown accepts that the offender’s plea of guilty is also an acknowledgement of her responsibility for murder, but he submitted that there is little else to indicate that the offender is remorseful.

185. I accept that the offender has developing remorse, which I take into account in her favour. I observe that she is taking positive steps in custody to address her significant psychiatric issues. The Court hopes that the offender will grow to fully acknowledge the terrible consequences of her actions.

Time in custody

186. The offender has been in custody since her arrest on 27 August 2020, a period of about three and a half years. The parties agree that the sentence that I impose ought to be backdated to commence from that date.

Mental Health/Disadvantage

187. In my opinion, the offender’s mental health issues and background of deprivation and disadvantage are closely related, and I will therefore deal with them together. Whilst I accept that the offender used drugs from time to time, on all of the somewhat conflicting evidence, I am unable to say much about her illicit drug use, other than to say that she was a cannabis user and suffers from a Cannabis Use Disorder (in remission in a controlled environment). There was conflicting evidence about the pattern of her use of other substances, including alcohol, MDMA, heroin and methamphetamine which I am unable to resolve one way or another. This aligns with Professor Greenberg’s opinion. I do not find that she has an established Substance Use Disorder.

188. The Crown accepted that Bugmy and De La Rosa issues should be appropriately considered in this case, but he submitted that these features should not overwhelm the seriousness of the offending. The Crown accepted Dr Ellis’s and Professor Greenberg’s diagnoses of BPD and PTSD and that she had dissociative symptoms as part of these disorders at about the time of the offending.

189. I do not repeat paragraphs [11] – [14] above which set out in detail the offender’s significant background of deprivation and disadvantage which Dr Ellis and Professor Greenberg agree caused the offender’s significant mental health impairments. That background includes physical, emotional and sexual abuse, neglect, placement in multiple foster homes, exposure to domestic violence, homelessness and a history of chronic self-harm from a very young age. When the offender was aged 4, a psychologist presciently predicted what would occur if the offender was not removed from her mother’s care.

190. I accept, on the balance of probabilities the following statements made by the offender to Dr Ellis and to Corrective Services psychologists. Her mother would have sex in front of her and persons in the household would touch her and sexually abuse her. Her mother would frequently physically abuse her and tell her that she should have died at birth. The offender was often left with no food and had to fend for herself from an early age. During the years living with her aunt and uncle, she was physically and emotionally abused. Before completing year 12, she moved to Thailand with her uncle who forced her to leave his home soon thereafter. She was homeless in Thailand for about a year, during which time she lived with sex workers who took her in, before returning to Australia after saving enough money for an airline ticket. She was sexually assaulted when she was 18 years of age. She was the victim of domestic violence during a relationship with her first boyfriend in her mid-twenties. She experienced episodic homelessness in the care of her mother and after her return to Australia.

191. As to the offender’s well-documented exposure to domestic violence, I note the comments of Fullerton J in Perkins v R [2018] NSWCCA 62 at [99]:

“The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.”

192. To all of this must be added the sexual abuse suffered by the offender at a time when she was particularly vulnerable.

193. As to the sexual abuse suffered by the offender as a child, I observe that the courts have long recognised that psychological and emotional damage to children from sexual abuse can be assumed: R v Tuala [2015] NSWCCA 8 at [56]; R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56; at [110]; R v MJB [2014] NSWCCA 195 at [49]; R v Erazo [2016] NSWCCA 139 at [44]).

194. In Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [99] - [102] Hamill J said:-

“[99] The impact of violence and sexual offences on victims is well understood and documented. In R v MJB, Adamson J observed “that the damage done to children who are victims of sexual assault by adults was well known and could be assumed”. The pervasive effects of child sexual abuse were again acknowledged in R v Gavel:

“[C]hild sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368–372 [26]–[39].”

[100] In Stanton v R, Beech-Jones J (Cavanagh and Harrison JJ agreeing) noted:

“The court is entitled to have regard to the well-known fact that the victims of child sexual assault very frequently suffer long-term, and serious, psychological consequences. Moreover, those consequences are not limited to the obviously, at face value, more serious offences.”

[101] The Royal Commission into Institutional Responses to Child Sexual Abuse (“RCIRCSA”) also contributed to the understanding of the impacts of child sexual abuse with the release of its final report and recommendations in 2017.The Commission’s conclusions, based on a body of academic research and the experiences of witnesses called in the course of the lengthy hearings and private sessions, analysed the adverse and multifaceted effects of child sexual abuse on “survivors”. The impacts on participants in the RCIRCSA were summarised as follows:

“After mental health, relationship difficulties were the impacts most frequently raised by survivors in private sessions, including difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Education and economic impacts were also frequently raised.

For many people, these diverse impacts are interconnected in complex ways, making it difficult to isolate the specific impacts of child sexual abuse. These interconnected impacts can be experienced at the same time or consecutively, as a cascade of effects over a lifetime. For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties.”

[102] This Court has echoed RCIRCSA conclusions that “what was previously regarded as low level sexual abuse can have catastrophic effects on children” in several decisions: BT v R [2019] NSWCCA 147 at [11] and see, for example, O’Sullivan v R [2019] NSWCCA 261 at [14], R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297 at [111].”

195. I do not doubt that the domestic violence and sexual abuse were substantial risk factors for the development of the offender’s mental health impairments, which was confirmed by Dr Ellis and Professor Greenberg. It follows that the offender developed mental health impairments that are temporally connected with the abuse she suffered at a young age. So too are the offender’s experiences of her early exposure to alcohol and drug abuse, homelessness, hunger and self-harm. I accept Dr Ellis’s and Professor Greenberg’s diagnoses of BPD and PTSD.

196. In my opinion, the offender’s significant and unresolved mental health issues are so intertwined with the elements of disadvantage set out above, that her mental health issues cannot be sensibly disentangled from the deprivation she has suffered throughout her life.

197. In my opinion, AB’s mental health impairments did not cause her to offend. However, as has been elsewhere noted, the language of the common law and its interaction with concepts relating to mental health is often unhelpful. In Luque v R [2017] NSWCCA 226, Hamill J said at [114]:-

“…a sentencing Judge dealing with evidence of an offender’s mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender’s mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender’s difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.”

198. There, his Honour was referring to the language and concepts set out in the well-known passage of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 243 FLR 28; [2010] NSWCCA 194 at [177], where McClellan CJ at CL summarised the principles to be applied in sentencing an offender who was suffering from a mental condition at the time of committing the offence, to the following effect (leaving to one side an offender who was more dangerous because of a mental condition):

1. It might reduce her moral culpability (and consequently the need to denounce the crime);

2. It might render her a less appropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;

3. It might mean that a custodial sentence weighs more heavily upon her; and

4. It might reduce the significance of specific deterrence.

199. In this particular case, as will be seen, in my opinion the offender’s mental health impairments in combination with other factors reduces her moral culpability, makes her a less appropriate vehicle for general deterrence, makes her custody more onerous and reduces the significance of specific deterrence.

200. In my opinion there is a clear association, or a bright line between, or a co-relationship with or a nexus between the offender’s mental health issues, the sexual abuse she suffered as a child, her childhood exposure to domestic and family violence including her need to fend for herself from time to time, her early exposure to alcohol and other drugs and her episodic homelessness, that whilst perhaps may not amount to causation comes very close. In my view, there is at least an indirect material contribution between the offender’s mental health and the offending.

201. In my opinion, in all of the offender’s circumstances, and because of the combination of the disadvantages she has suffered (foreseen by a psychologist many years ago), she was unable to make choices in the same way as an average person at the time of the offending.

202. I must determine whether the disadvantage and adversity suffered by AB reduces her moral culpability. In my opinion, there is more than ample indicia, which I do not arrange in any hierarchy. In this case there is abundant evidence to establish the offender’s background of significant deprivation, and I give it full weight in this sentencing exercise: Bugmy v the Queen (2013) 249 CLR 571 at [44]: see also Hoskins v R [2021] NSWCCA 169 per Brereton JA at [57].

203. I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

204. This is such a case. In my opinion, taking into account the very limited emotional resources of the offender, and the trauma she has experienced, her moral culpability is reduced. This finding does not extinguish AB’s moral culpability for the murder of her mother. She bears responsibility for the commission of that offence. My finding is that her moral culpability is diminished, which I will take into account as a matter to synthesise on sentence.

General Deterrence and Denunciation

205. The Crown submitted that notwithstanding the offender’s deprived background, it must not overwhelm the seriousness of the offending.

206. As AB’s crime involved the unlawful taking of a life, the sentence imposed must reflect the community’s denunciation of her actions. However, as I have explained above, because of the interaction between the significant indicia of deprivation and the offender’s mental health issues, general deterrence has less of a role to play, a position which the Crown accepted.

Prospects of Rehabilitation and Personal Deterrence

207. Dr Ellis reported that despite being unable to recall the events, the offender was motivated to engage in rehabilitation and to be an example to others. She was engaging with psychiatrists and psychologists in custody. He believed that she should have better access to multidisciplinary treatment, work and education after she has been sentenced which would aid in her rehabilitation.

208. Professor Greenberg noted that from a psychiatric perspective, the treatment of BPD is challenging and that it is likely that the offender will require long-term psychiatric, psychological and social management interventions and supports. He believed that if the offender maintained her engagement with these interventions, there were prospects of further rehabilitation.

209. Taking all matters into account, including the 2023 START assessment, I cannot find that the offender’s prospects of rehabilitation are good. I find that they are guarded. Much will depend on her future interactions with services in custody. On the other hand, given that the offending arose as a result of a complicated relationship with her mother, that she has no prior criminal history, and that she is likely to be closely managed and supervised for many years, in my opinion she is unlikely to re-offend, notwithstanding that her BPD may cause outbursts of anger and dysregulation. In my view, personal deterrence has a limited role to play in this sentencing exercise.

Hardship in Custody

210. Dr Ellis observed that this is the offender’s first time in custody and that she may be more vulnerable to physical or psychological pressure from inmates with an anti-social background. He notes that populations in custody have high rates of suicide. Given that AB has a history of serious suicide attempts, including one serious attempt whilst in custody, he is of the view that the offender will require ongoing mental health support to moderate her underlying risk. He is of the view that given her complex presentation, the offender would benefit from contact with at least one long-term clinician which is likely difficult to achieve in custody.

211. I accept that the custodial environment will be more onerous for AB, although I observe that it is difficult to determine the effect with any precision.

COVID-19

212. The Court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence, particularly as it has applied to the offender’s experience in custody in the past. Corrective Services NSW have imposed protective measures to prevent and isolate any outbreak of COVID-19 amongst the prison population. These conditions have included suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities in the past. These measures, though designed to protect inmates against contracting the virus, have necessarily negatively impacted the quality of life enjoyed by the offender, which is difficult to quantify with any degree of specificity. The pandemic continues. I take it into account as a matter to synthesise on sentence.

Form 1

213. As indicated earlier, I have been asked to take an offence into account on a Form 1 basis when sentencing the offender, the details of which I have set out above. In this matter, it has no practical effect on the sentence that would otherwise have been imposed. I have taken this offence into account and I have carefully considered s 33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

Life sentence

214. The Crown did not submit that a life sentence is called for in the circumstances of this case. Taking into account the circumstances of the offence and the offender, I am not satisfied pursuant to s 61(1) of the Sentencing Act that the offender’s culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.

Special circumstances

215. The Crown accepts that sentencing courts have a wide discretion when finding special circumstances, but his primary submission was that AB does not require an extended period of supervision on parole.

216. The offence carries a standard non-parole period of 20 years imprisonment. I observe that this is neither a starting point nor an end point for arriving at an appropriate and proportionate sentence. Rather, I have had regard to all relevant factors including the legislative guideposts of the maximum penalty and the standard non-parole period.

217. Given the terms of s 54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period are the special circumstances that I find, that is the reduction in the offender’s moral culpability, the fact that this is the offender’s first time in custody, the offender’s significant psychiatric needs and the need for extended supervision with respect to the management of her likely accommodation and mental health requirements over her lifetime. I have deviated to a ratio of 66.6% because of special circumstances.

218. To the extent that it may be observed that I should avoid overweighing or double counting when dealing with special circumstances, factors may be – and in this case are – relevant to both the total sentence and the length of the non-parole period. In Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 at 531, Mason CJ and McHugh J said:-

“Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.”

219. I find special circumstances for the reasons stated.

Comparable cases

220. I have considered the bundle of broadly comparable cases provided to me by Mr Watts. As always, the different objective and subjective factors in those cases make any true comparison difficult.

Threshold

221. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Sentence

222. I have taken into account the various purposes of sentencing under s 3A of the Sentencing Act. They include ensuring an offender is punished for her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s urgent need for psychiatric review to deal with her significant mental health issues and her background of deprivation so as to achieve rehabilitation.

223. As the High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

224. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s 21A of the Sentencing Act. The sentencing Court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen (2005) 228 CLR 357; (2005) 215 ALR 213; [2005] HCA 25.

225. As I have said, in determining an appropriate sentence I have kept in mind the legislative guideposts of the maximum penalty of life imprisonment and the statutory non-parole period of 20 years.

226. I intend to proceed to sentence the offender by way of a term of full-time imprisonment. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the appropriate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose a sentence of imprisonment of 16 years and 6 months after a discount of 25% for the early plea of guilty. Without the discount, the sentence would have been 22 years. I impose a non-parole period of 11 years.

Orders

227. AB, please stand.

1. I convict you of the offence of murder contrary to s 18(1)(a) of the Crimes Act.

2. Taking into account the matter on the Form 1, I impose a sentence of imprisonment of 16 years and 6 months with a non-parole period of 11 years. I have discounted your sentence by 25% for your plea of guilty, which otherwise would have been 22 years.

3. I have backdated your sentence to 27 August 2020. Your head sentence will expire on 26 February 2037. You will be eligible for release to parole on 26 August 2031.

4. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence for which you have been convicted. Your legal representatives are directed to advise you of the implications of that matter to you.

5. AB, do you understand the orders I have made?

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Decision last updated: 20 February 2024