R v BW & SW (No 3)

[2009] NSWSC 1043

CITATION:	R v BW & SW (No 3) [2009] NSWSC 1043
HEARING DATE(S):	19 May - 23 June 2009, 5-7 August 2009
JUDGMENT DATE :	2 October 2009
JUDGMENT OF:	R A Hulme J
DECISION:	BW - Sentenced to imprisonment for 16 years with a non-parole period of 12 years. SW - Sentenced to imprisonment for life.
CATCHWORDS:	CRIMINAL LAW - sentence - murder and manslaughter - starvation of daughter - worse case category of both offences
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1999 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Burrell v R [2009] NSWCCA 163 Knight v Regina [2006] NSWCCA 292 R v Ali [2005] NSWSC 334 R v Ainsworth (1994) 76 A Crim R 127 R v BW & SW (No.2) [2009] NSWSC 595 R v Chung [1999] NSWCCA 330 R v Dodd (1991) 57 A Crim R 349 R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 R v Peisley (1990) 54 A Crim R 42 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v Simpson [2001] NSWCCA 534; NSWLR 704 R v Thomas Sam; R v Manju Sam (No 18) [2009] NSWSC 1003 Regina v Wilkinson (Supreme Court of New South Wales, 9 April 1998, unreported Taber v Regina; Styman v Regina [2007] NSWCCA 116; 170 A Crim R 427 The Queen v De Simoni (1981) 147 CLR 383 Veen v The Queen (No. 2) (1988) 164 CLR 465
PARTIES:	Regina (Crown) BW (Offender) SW (Offender)
FILE NUMBER(S):	SC 2008/16466; 2008/15683
COUNSEL:	Mr P Barnett SC (Crown) Mr M Austin (BW) Mr D Stewart (SW)
SOLICITORS:	Office of the Director of Public Prosecutions Legal Aid NSW (BW) Advance Legal (SW)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

R A HULME J

2 October 2009

2008/16466 R v BW
2008/15683 R v SW

JUDGMENT

1 HIS HONOUR: The offenders, SW and BW, were the mother and father respectively of a 7 year old girl. They were tried for her murder. On 23 June 2009 the jury returned a verdict of guilty of murder in respect of SW and a verdict of not guilty of murder but guilty of manslaughter in respect of BW.

2 Nothing may be published that would identify the deceased and her siblings because of the provisions of s 11 of the Children (Criminal Proceedings) Act 1987. That includes the names of the offenders. I have permitted the deceased to be identified by her middle name, Ebony: R v BW & SW (No. 2) [2009] NSWSC 595

3 The maximum penalty for murder is imprisonment for life: s 19A Crimes Act 1900. A standard non-parole of 25 years is prescribed for murder where the victim is a child under 18 years of age: Table to Division 1A of Part 4 Crimes (Sentencing Procedure) Act 1999. The maximum penalty for manslaughter is imprisonment for 25 years: s 24 Crimes Act.

Basis of the offences

4 The Crown put its case on murder on alternative bases. It alleged that there was a deliberate omission to provide adequate nourishment to the child and/or an omission to obtain medical attention for the child, and in either case that such omission was accompanied by an intention to kill or a reckless indifference to human life. In respect of the latter, the Crown was required to establish that there was a full realisation that by the omission to act in either of the relevant ways the child would probably die but that the accused deliberately continued to omit to act regardless of that probability.

5 In relation to the alternative of manslaughter the Crown case was one of criminal negligence. The Crown was required to establish that the accused was negligent because he/she breached a duty of care by failing to provide adequate nourishment and/or obtain medical attention for the child; that such omission(s) caused the death of the deceased; and that such omission(s) fell so far short of the standard of care which a reasonable person would have exercised and involved a high risk that death or grievous bodily harm would follow. The Crown was also required to establish that the degree of negligence was so serious that it should be treated as criminal conduct.

6 It was a component of both offences that as parents, the offenders owed a duty to provide the child with adequate nourishment and medical attention. There was no issue about that.

7 On the charge of murder, in respect of both offenders, the only real issue for the jury was whether there was an intention to kill or a realisation of the probability of death occurring. The case for both offenders was that there was not. They conceded that the Crown had established all of the other elements.

8 SW’s case was that she was not guilty of murder but guilty of manslaughter, although she did not plead as such. The jury were obviously satisfied beyond reasonable doubt that she was guilty of murder. A question arises as to whether she should be sentenced on the basis that she intended to kill or that she was recklessly indifferent to the child’s life.

9 BW’s case was that he was not guilty of anything. The jury must be regarded as having had a reasonable doubt that he intended that the death occur and that he realised the probability of death occurring.

Facts

10 Ebony was born on 22 March 2000 and died sometime during the night of 2-3 November 2007 at the age of 7 years 7 months. Death was a result of starvation and neglect.

11 It is necessary to trace the detail of Ebony’s life in order to understand the offenders’ responsibility for the occurrence of this extraordinary event.

Medical history

12 Ebony experienced considerable difficulties, particularly in her early years. However, there was a persistent failure of her parents to do the best they could for her. There were many missed medical appointments and a complete lack of commitment to follow up on educational and therapeutical services that were offered to them.

13 Ebony weighed 2.9 kg at birth. In her early years she failed to thrive or to meet milestones. She was diagnosed with global developmental delay for which there was no obvious medical reason. She only commenced crawling at the age of 15 months and was still unable to walk at 22 months. She was under the care of a number of general practitioners and specialist paediatricians. A clinical psychologist gave an opinion that at the age of 23 months she was functioning at the level of a 1 year old.

14 Ebony’s weight at birth was between the 10th and 25th percentile. She remained at a low percentile for the first four years or so of her life. One doctor suggested when Ebony was 18 months old that she be brought in for weekly weighing. She was not. A paediatrician who was to later review the Sydney Children’s Hospital medical records noted that during periods when Ebony was being regularly reviewed by medical professionals her growth was significant but in between those times it tended to be minimal. In one period of six months she gained 3.5 kg but in the following three months she gained only 100 grams.

15 Ebony was also slow in developing verbal communication skills and she was referred to a speech therapist. She was only taken to a few sessions before there was a parental decision not to pursue this as it was thought that it was not helping. The speech therapist reported that the parents seemed less concerned about Ebony’s speech and language delay than the therapist was.

16 At the age of 34 months Ebony was assessed as functioning as a child of 13 to 16 months. A paediatrician considered there were signs of autism but did not make a formal diagnosis because she considered the same symptoms were often observed in children from an under-stimulating or deprived background.

17 Efforts were made by doctors and staff at the Tumbatin Clinic, a developmental assessment clinic at the Sydney Children’s Hospital, to provide assistance but there was very little parental enthusiasm for this.

18 Ebony’s weight by the age of four was found to be still below average but she was gaining at a normal rate. A paediatrician stressed the need for the parents to follow up on assessments, therapies and programs that had been recommended but there was only partial compliance.

19 At around her fifth birthday, Ebony weighed 19.6 kg and was described by a specialist as “a well nourished short girl”. This weight put her at the 75th percentile. She had gained 5 kg in the previous nine months.

20 In April 2005 a formal diagnosis of autism was made. A number of the doctors who had seen Ebony had described her displaying a variety of difficult behaviours. The following month, SW sought medication to assist with the behavioural problems. A two month supply of dexamphetamine was prescribed. The prescribing paediatrician also made inquiries about various services that were available which might be of assistance to Ebony but, despite being requested to do so, SW failed to follow through with them.

21 It was also noted that whilst SW had told one of the specialists that Ebony was attending a day-care centre in 2005, that doctor’s inquiry at the centre revealed that Ebony had only attended on a few occasions.

22 Ebony was last seen at the Sydney Children’s Hospital in February 2006 when she was presented for a hernia repair. She was recorded as weighing 20.5 kg which placed her still at the 75th percentile. There was evidence that if she had maintained her weight at that percentile she should have weighed 26 kg in November 2007. There was expert evidence that there was no reason for her not to continue at that percentile, provided she was properly nourished.

23 Ebony was taken to her general practitioner at the end of February 2006. He noted that she exhibited features of autism with poor eye contact and repetitive and disruptive behaviours. He had not seen her since September 2003 and he noted that she had made a physical transformation to have become “quite a chubby six year old”.

24 Ebony was returned to that general practitioner on 27 March 2006 for her final vaccinations. She was reported to look as well as she did the previous month. This was the last occasion Ebony was seen by any medical professional.

25 SW and BW, however, continued to see the general practitioners that had treated Ebony. The last consultation was in May 2007. In none of these contacts with doctors was there any concern raised by either of the parents about Ebony’s health or welfare.

Other aspects of Ebony’s history

26 In terms of her education, reference has been made to her occasional but infrequent attendance at a day-care centre. By early 2006, as she approached her 6th birthday, she had experienced virtually no schooling. At that time there was some discussions involving SW about Ebony being enrolled at the Wairoa special school. An offer of placement was made and arrangements were put in place to provide transport for Ebony to and from the school. Despite the efforts of the principal of that school, and of officials from the Department of Education, Ebony never attended. Excuses were made, typically that she was ill. In August 2006, SW obtained a medical certificate from a general practitioner excusing Ebony from attending school on account of her global developmental delay for the rest of the year.

27 The Department of Community Services had some involvement with the family from at least 2002 onwards. A younger sister of Ebony was taken into care by the Department soon after she was born in March of that year. It is clear that both BW and SW were resentful and distrusting of departmental officers from that point onwards. As far as the evidence in the trial went, despite a number of home visits, no community services officer saw Ebony at any time. One such visit occurred in April 2007 when the officers saw Ebony’s two older sisters but they were told that Ebony was sleeping and would be too distressed to know that the department was involved.

28 The family lived in Beauchamp Road, Matraville for a number of years before they moved to Hawks Nest at the end of August 2007. There was evidence that in March 2007 an officer of the Department of Housing attended the home and found it to be in a putrid state. A demand was made of BW to rectify the situation which he acted upon.

29 A woman who lived next door gave evidence of only seeing Ebony outside the home on one occasion. This was in about May 2006 when she saw SW pushing her in a stroller up the street. Otherwise the neighbour only ever saw Ebony in her bedroom, the window of which faced the neighbour’s home. She never saw anyone with her in the room. She said she appeared to be left in the room for lengthy periods of time with the door closed. The window was broken in late 2006 – early 2007. After it was repaired a piece of plywood was affixed so as to cover the lower half of the window. Although the neighbour could still hear Ebony she never saw her again. When she had seen Ebony in the street in May 2006 and otherwise in the bedroom she thought she was a healthy, chubby looking little girl.

30 A frequent visitor to the neighbour’s home also saw Ebony through her bedroom window. She never saw her anywhere else. She described her as just staring out of the window, often wearing just grubby underpants. That witness also did not notice anything unusual about Ebony’s weight, although she did not see her after the window was boarded up.

31 The neighbour went into the house soon after the W family had moved out. She said that Ebony’s room had piles of faeces in the corner and the room had a bad smell of both faeces and urine.

32 The last known person to see Ebony outside of her immediate family members was a removalist who was engaged to move the household contents from Matraville to Hawks Next on 31 August 2007. At Matraville he was told not to go into the child’s bedroom. The reason given was that the child was autistic and would be crying and cranky if woken. He did, however, see Ebony in one of the bedrooms after they arrived at Hawks Nest. He described her as sitting down, just staring, neither saying anything nor making any noise. He said she was unusually skinny. He said she appeared quite young, around 3 years of age. Ebony was, of course, 7 years 5 months old at this time.

33 One of the removalist’s employees gave evidence that whilst at Matraville he asked to use the bathroom. BW insisted that he not go into any of the bedrooms. He escorted the worker to the bathroom and then stood in front of the closed bedroom doors, apparently to ensure that he did not enter any of them.

34 The Crown called a number of witnesses who lived and worked in the Hawks Nest area and who were aware the offenders had moved in to the district. Whilst they saw the two offenders, sometimes quite frequently, none of them ever saw Ebony. These witnesses included the real estate agent who was the managing agent for the W’s landlord. She attended the premises on four occasions in the two months that they lived there. They also included a handyman who did some work around the house and a television technician who attended to repair the television antenna connection. There were also people who worked at the newsagency/post office, the bakery, the pharmacy and the supermarket who each said they saw the two offenders at their establishments but never with Ebony. The pharmacist said that they would come in to fill prescriptions for themselves, or each other, but never for any children.

35 The television technician said he had to access a manhole in the hallway of the home and whilst there he saw that the door to what must have been Ebony’s bedroom was closed. He said there was rope tied between the doorhandle of that door and the doorhandle of another door in a way that would have prevented Ebony from opening the door from inside her room.

36 A large number of family photographs were seized by police from the Hawks Nest home after Ebony’s death. They included a photograph taken on a family holiday on the Gold Coast in December 2004. It shows Ebony as a well-nourished child. From July 2006 until her death there were a large number of family photographs taken on various festive occasions such as birthdays and Christmas. Ebony does not appear in any of them.

37 In summary, the evidence establishes that Ebony was last seen by a doctor in March 2006. In 2007 she was only ever seen by one person aside from her immediate family members and that was the brief sighting by the removalist on 31 August 2007.

Death

38 Ebony was found dead in her bedroom by her mother on the morning of Saturday 3 November 2007.

39 Dr Kasinathan Nadesan, forensic pathologist, attended the house at about 8pm that day. He said he saw, “a little child dead ... in an extreme degree of emaciation ... wasted and dehydrated. It looked almost like a mummy to me”. He described her clothing and bedding as heavily stained, possibly from a combination of vomit and faecal stains and other body fluids over a period of time. There was a very strong smell of urine and other unpleasant body odours.

40 Dr Nadesan performed a post mortem examination of the body the following day. The body was first washed to remove any bodily secretions and stains and yet the smell of urine persisted.

41 The body weighed just 9 kilograms. It is to be recalled that Ebony weighed 20.5 kilograms in February 2006 and that if she had maintained her then rate of growth she should have weighed 26 kilograms in November 2007.

42 During the course of the examination Dr Nadesan noted a number of significant matters:

· Ebony’s hair was heavily matted and there was dirt and layers of white and brown solid particles, including faecal matter, trapped within it.

· There was no post mortem lividity because there was very little blood as a result of extreme dehydration.

· There was no rigor mortis because Ebony had virtually no muscles.

· Her face was distorted with her eyes sunken. There was only skin stretched over the skull.

· The teeth were unclean and the lips dried and darkened.

· The ribs were well defined on the skin surface and there was no subcutaneous fat.

· The abdomen was scaphoid (sunken). In the abdominal wall there was only a very thin film of fat – 1-2 millimetres whereas in a normal healthy child there should be at least 20 – 30 millimetres.

· The small and large intestine contained no digesting food particles.

· The terminal end of the large bowel contained solid faecal particles which was a typical finding in someone who is severely malnourished and dehydrated.

· The limbs, hands and feet were all wasted. Essentially, they were just skin and bones.

· The soles of the feet were wrinkled due to soakage in liquid – possibly urine or other body fluids – over a period of time.

· There was skin peeling between the toes due to chronic soakage and lack of cleaning for a period of time.

· There was a degree of atrophy (wasting) of the brain which was indicative of chronic, long-term malnourishment.

· The lungs were quite pink and clean, an indication of no exposure to extraneous material in the environment. The doctor said this was indicative of someone who did not go outdoors.

· There were no physical injuries.

· There was no indication of disease.

43 In summing up his observations, Dr Nadesan referred to the body being extensively wasted and dehydrated. There was hardly any subcutaneous fat present. The muscles were wasted and dehydrated. The body was in a poor state of hygiene, with offensive body odour including stale urine. The hair was unclean and heavily matted with dirt. There was no evidence of natural disease or of physical violence. He concluded that death was due to starvation and neglect.

44 This was a case of “chronic” as opposed to “acute” starvation. Dr Nadesan described chronic starvation as, “a periodical reduction in the administration of food and fluids and so forth – this kind of scenario will go on for several months before a person would succumb to it”. He said that, perhaps unsurprisingly, the physical appearance of the person will change during the period of the starvation.

45 Dr Nadesan said it was not possible for the child to have stood unassisted between 5pm and 8pm the previous evening (a claim later made to police). She would have just collapsed if not supported. It would not have been possible for her to be able to get out of bed, or move unassisted, for maybe for a couple of weeks but certainly for the few days preceding her death.

46 Dr Nadesan said:

The terminal stage of her state, as severe malnutrition, emaciation, usually they go into some sort of semiconscious state and then finally become comatose before they pass. So it is very likely she would have been in a stuporous, semiconscious or even unconscious state during the last few days. Maybe semiconscious or drowsy, sort of, during the last few weeks.

47 Dr Edward O’Loughlin, a specialist gastroenterologist at Westmead Children’s Hospital, reviewed all of the relevant material and gave evidence confirming that death was a result of chronic malnutrition caused by starvation which, he said, was a result of profound neglect.

48 He said that the lack of food in the gastrointestinal tract indicated that it had been many hours or days since Ebony had last eaten solid food. He said it would have taken “weeks” as a minimum to get into this state, possibly many months. Dr O’Loughlin had seen many hundreds of children who he had treated for malnutrition over a period of 25 years but he had never looked after somebody so malnourished. He said that malnutrition is relatively easy to treat, even within hours from death.

49 He described the solid faecal matter found in the bowel as “starvation stools”. He said that they had been there for a long time and indicated lack of solid food intake for days to a couple of weeks.

50 Dr O’Loughlin said that it would be highly unlikely that Ebony would have be able to walk for her last days or even weeks given the state of wasting of her muscles. It was highly unlikely she would have been able to feed herself. Indeed, it would have been very unlikely she would have been capable of eating or drinking in the last few days. It was very unlikely she would have been able to sit. She would not have been able to support her own head. It was highly unlikely she would have been able to stand. It was not a reasonable possibility that she would have been able to swallow food or fluid on the day before her death.

51 Dr O’Loughlin was provided with the description of Ebony given by the removalist who had seen her on 31 August 2007. He said this indicated that there had been a protracted problem that had gone over many, many months for Ebony to have got to the state she was in at death.

52 Exhibit C at the trial was a collection of photographs taken of Ebony after her death, both in her bedroom and at the morgue. They are the most horrific images of a deceased child imaginable. I have referred in some detail to the descriptions of the doctors of the appearance of the body but it is only by viewing the photographs that the full horror of Ebony’s death, and the desperate state that she was in for some time leading up to it, can be properly understood. It is patently clear that anyone would have realised, at least in the days leading up to her death, that unless she was provided with nourishment and/or medical attention she would certainly die. It is clear that for a matter of weeks that it would have been obvious that she would probably die. This is all the more if the person had seen Ebony’s demise from a “chubby little girl” of 20 kilograms at the age of 5 years 11 months to a skin covered skeleton of 9 kilograms at age 7 years 7 months.

53 Dr O’Loughlin was asked after the trial to provide a report concerning the pain and suffering endured by Ebony in the time leading up to her death. He stated that he had never been involved in the care of a child who has died directly as a result of starvation or chronic malnutrition but he was able to refer to children in whom withdrawal of oral intake of nutrition is necessary for treatment of a serious medical condition. After referring to the way in which those children have reacted he said:

In [Ebony’s] circumstances her distress induced by hunger, grossly amplified by any containment in the room of the house, would have been manifested by crying, tantrums, extreme behaviour disturbance and clear distress. Anxiety and distress also accompany the biochemical changes in the body due to falling levels of available energy (such as glucose), essential for brain function. It would have been very obvious to any adult who saw her that she was in extreme distress. As the degree of malnutrition worsened lethargy, sleepiness and disinterest in her surroundings would have set in. She would have been very withdrawn and largely unresponsive to her environment - a very abnormal situation for any child.

The offenders’ accounts as to the discovery of the death

54 SW gave evidence before the jury that on the day before Ebony’s death was discovered, that is, on Friday 2 November 2007, she had woken Ebony early in the morning and taken her to the lounge room and fed her. She returned her to bed a short time later and then got her up again at about 5.30 – 6.00 o’clock in the evening and repeated the same process. Ebony ate and drank very little on each occasion and appeared tired so she was returned to bed. SW said that Ebony walked between the bedroom and the lounge room with SW holding her hand. She said that when in the lounge room she was either sitting up or lying down. On each occasion when she was returned to the bedroom SW dressed her, including putting a nappy on her.

55 Having regard to the evidence of Dr Nadesan and Dr O’Loughlin I am satisfied that SW’s account of Ebony being able to walk, to sit up, and to swallow food and fluid was completely implausible.

56 SW said that she rose the next morning at around 7.00am. She said that after preparing Ebony’s breakfast she went to her bedroom but found her lying on the mattress just staring. She raced over, called her name and then started giving her mouth to mouth resuscitation for five to ten minutes. She said there were bull ants coming out of Ebony’s mouth. She also said there was a black discharge coming out of Ebony’s ears. She realised that she was dead.

57 SW said that Ebony did not have any clothes on. She said that Ebony was in the habit of taking them off. The claim that she did so in the hours before she passed away, having regard to the evidence of Drs Nadesan and O’Loughlin, is ludicrous. SW said that she obtained clothes and re-dressed Ebony, including putting a nappy on her. She said she held her in her arms singing nursery rhymes and stroking her hand and her face for the next few hours. She then put Ebony into bed, went to the main bedroom and took an overdose of Panamax tablets in an attempt to kill herself. She said she did this because she, “didn't want her to be by herself and I didn't want to be around anymore.” She was crying. She said she then had a conversation with BW and he was repeatedly asking her what was wrong but she did not respond. He eventually asked, “Is it [Ebony]?”. She did not respond. After repeating that question he then asked, “Is [Ebony] dead?”. She said she cried and nodded. She then heard BW talking about ringing someone.

58 BW’s evidence before the jury was that he woke on Saturday 3 November 2007 at around 9.30am. He saw Ebony’s sisters in the kitchen. He asked where SW and Ebony were and was told they were in Ebony’s room. He said that he responded, “That’s fine”. He proceeded to the lounge room to get the scratchings for the day’s horse races. He then commenced placing bets on the internet. At some stage he became aware of SW crying in the bathroom. He went to her and asked her a number of times what was wrong. She told him not to worry about it. He then asked, “Is she dead?”. SW nodded. He asked, “How?”. He said that SW replied, “Bull ants, bull ants, bit of an allergy to them. They were coming out of her mouth”. SW told him that she had been giving her mouth to mouth for three hours. They were both crying. He said, “So, [Ebony] is dead?” and she replied, “We have to get rid of the body”. He said that he rejected that idea and rebuked her. He claimed that she then said, “Well, if you don’t get rid of the body, I’m going back to bed”. It should be noted that SW denied making any suggestion about getting rid of the body.

59 BW said he did not know what to do. He made a phone call to his mother but there was no answer. He then rang and spoke to an aunt. He then called triple 0.

Ambulance and police officers arrive

60 The emergency service records indicated that the triple 0 call was made a few seconds before 1.00pm. The first ambulance arrived nine minutes later. The officers were told by BW that the child had been found deceased at about 7.00 o’clock that morning by her mother and that he had found out at 11.00 o’clock. The officers proceeded straight to Ebony’s bedroom. They were met by the stench of stale urine, something that was obvious to all the police officers who subsequently attended the scene. Ebony was in bed and when the covers were pulled back it was immediately obvious to the officers that she was deceased.

61 A short time later there was a conversation between ambulance officers and BW in which he said that Ebony had been sick recently with diarrhoea and vomiting for about two weeks. BW was asked whether she had been seen by a doctor and he replied that he did not have anything to do with that and that SW looked after such matters. One of the officers asked him whether there had been any reason to expect that she was going to pass away and he replied, “She was playing last night and everything was okay”. This, of course, was a nonsense.

62 Two further ambulance officers arrived at the house. They had been called out after SW’s overdose became known to the first two officers. She was taken to the Mater Hospital where she was admitted. She was discharged the following day.

63 Police officers started arriving shortly after 2.00pm. In a conversation with one of them, BW claimed that he did not have anything to do with the care of Ebony as that was SW’s job. He explained to another officer that this was because Ebony did not want anything to do with anyone other than SW. He was asked when Ebony last saw a doctor and he said that he did not know but that SW would.

64 The crime scene officer called in to examine the bedroom late in the afternoon found the same stale urine smell. He described the carpet, the bedding and Ebony’s clothing as being littered with stains. This is apparent in the photographs that he took. The nappy Ebony wore was neither wet nor soiled but the clothing bore a strong urine smell.

65 One thing that is particularly notable about the state of Ebony’s bedroom is that it contained a bed and a separate mattress that was on the floor. There was nothing else in the room. It had no sign of being a room occupied by a 7 year old child. There was not a single toy. There were no decorations apart from a small picture on the wall of a sad looking little girl.

66 In contrast to the state of Ebony’s bedroom, the rest of the house was relatively clean and tidy. There were items in the living areas for entertainment such as a television, computers, a pool table and numerous books and DVDs.

67 Police found a large quantity of prescriptions and prescription drugs in the house. They were all for BW and SW with the exception of two items for one of the elder siblings. Both offenders gave evidence that they were heavy users of drugs such as Valium, Panadeine Forte and Panamax. There were no prescriptions or medications for Ebony.

BW’s versions - to police and to jury

68 BW was interviewed by police on 5 November 2007. His evidence at the trial was that he told lies to the police. He said that he repeated things he had been told by SW that he had no personal knowledge of. He did this in an attempt to protect SW. He thought she might have done something wrong because, on his account, she had suggested getting rid of the body.

69 The lies to the police included him saying that in the days before her death Ebony was bubbly and smiling. He embellished this by saying “that’s what I want to remember her as anyway”. He said he last saw Ebony the night of her death at 8.00 pm, sitting on the lounge staring at the television with a blank look. He had seen her that morning eating breakfast and she seemed physically well. He also claimed to have seen her eating her evening meal when he arrived home late that afternoon. She did not appear ill.

70 When he was told by one of the interviewing officers that Ebony had died of malnutrition, dehydration and neglect, he claimed to be shocked. He said, “she drank heaps”, and, “all my children have been looked after like gold”. He also said that at “8 o’clock last night .. she was up and she looked perfect to me” .

71 In his evidence before the jury BW said that he had only in fact seen Ebony twice at Hawks Nest that he could recall. He explained that this was because he was in his “own little world with valium”. He said that he had never been into Ebony’s bedroom. He had no knowledge of her suffering from vomiting and diarrhoea. In an attempt to explain his lies to police he claimed that he had been given information about Ebony’s condition by SW sometime after the death. He had to concede that this must have been in the time between when he became aware of her death and the arrival of the police and ambulance officers because he had passed on some of that information to them.

72 BW conceded in cross examination that Ebony looked “unwell” on the day of the move to Hawks Nest. He also accepted that he had actively obstructed Department of Community Services officers from monitoring Ebony and her elder siblings. He had no knowledge as to why Ebony did not attend the special school in which she had been enrolled in 2006. He was largely oblivious to her attendances and non-attendances at medical appointments, speech therapy and the like. He could offer no explanation for why Ebony was not in any of the family photographs from July 2006. He accepted that he knew that Ebony was thin and unwell but persisted in claiming that he did not know that she was starving. He said he believed at the time, but not now, SW’s explanation of Ebony having died because of bull ants. He said that in hindsight he realised that he did not pay appropriate attention to Ebony’s health and well-being.

SW’s versions – to police and jury

73 A search warrant was executed at the offenders’ home on 9 November 2007. Conversations between each offender and the police over a lengthy period of time were recorded. They included SW saying that Ebony was not as happy at Hawks Nest as she had been at Matraville, something she put down to the unfamiliar surroundings. She said she started going off her food in the second or third week. However, she thought Ebony was just adjusting to the new environment and she would pick up. She said it was hard to tell if she was losing weight, adding that she had a “hell of a lot to drink”. Right up until the end Ebony was eating, drinking, walking around, making sounds, gesturing as to what she needed, and going to the refrigerator.

74 SW told the police that the behavioural problems that Ebony had displayed in her earlier years were not as prevalent at Hawks Nest. She was asked whether the bedroom door was ever locked and she spoke of tying the door closed so that she could not get up at all hours. She said that she had done this from the age of three and a half. She said that she had told the paediatrician who did not have a problem with it.

75 SW told the jury that when the family moved to Hawks Nest Ebony was “a bit thinner” compared to how she was in 2005 but she had no concerns about her health. She said she was the only one to feed Ebony as she did not interact with her father or sisters. She had not taken Ebony to a doctor since March 2006 as she felt that she was able to meet all of her health and medical needs. She said Ebony had experienced vomiting and diarrhoea before and SW had been able to bulk her up again. About two weeks after the move to Hawks Nest Ebony had gone “right off her food”. She said she did not stop eating completely but her appetite was reduced. However, she did not start to lose condition and SW did not think it was serious enough to take her to a doctor.

76 SW said that Ebony continued losing interest in food and it became serious as time went on, although she did not stop eating completely and SW never stopped trying to feed her. She said in the last two weeks Ebony spent more time asleep. She was up each morning and evening for 1½ to 2 hours at a time. The vomiting and diarrhoea was constant in that last two weeks. SW claimed that two weeks before Ebony died she had spoken to BW about the situation but she said he reminded her that she had seen Ebony through similar situations in the past and there was no need to see a doctor. SW said she agreed. One week before the death SW had still not noticed any change in her condition. She did not consider taking her to a doctor because she still did not see it as being that serious. She thought she would get better as she had done in the past. She said that at around that time, one evening as she was taking Ebony to bed, BW had said to her, “if it kept up she might die”. She told him not to be silly and that she would come good.

77 SW was shown the post mortem photographs (Exhibit C). She said that she did not see Ebony like she appears in those photographs.

78 SW said that she found rearing Ebony with her autism difficult but claimed that she loved and cared for her. In cross examination she explained that Ebony was not in any of the family photographs after July 2006 because she would make a nuisance of herself on such occasions. She was left in her room and they would have a separate celebration with her. I find that explanation difficult to accept in the light of SW’s evidence in re-examination at the trial which was to the effect that since the hernia repair in early 2006 Ebony’s behaviour was easier to manage and was less of a problem. Even if the explanation is accepted, it still fails to explain the absence of any photographs of Ebony.

Leaving town – subsequent arrest

79 It was suggested to the offenders by police that they should leave their home so as to avoid persistent media interest. They travelled to Sydney and then to the South Coast. They were arrested on 17 November 2007 at Albion Park. The Crown did not contend that they had fled in an endeavour to avoid police because they were conscious of their guilt.

80 Both offenders have been in continuous custody since their arrest and so their sentences will be back-dated until then.

Attitude of offenders to Ebony generally

81 I am satisfied that, at least in the latter part of her life, Ebony did not receive the love of her parents. They were both so absorbed in their own lives that they did not care about her. Locking her in her room and excluding her from family celebrations are indicative of this. Ignoring her obvious distress in her last weeks, at least, is a further indication. The lack of parental love and concern is further confirmed by the fact that in the fortnight between her death and their arrest they made no inquiry whatsoever about when her body would be released from the morgue and they gave no thought at all to having a funeral for her.

Subjective circumstances of SW

82 The following information as to SW’s personal circumstances has been derived from her evidence at the trial and on sentence, the evidence of Professor Starmer, pharmacologist, and from reports by Dr Olav Nielssen, psychiatrist, and Ms Anita Duffy, psychologist.

83 SW was born in 1973 and was 34 at the time of Ebony’s death.

84 She has a criminal history comprising a single offence of shoplifting in 1998 which was dismissed without conviction. I propose to ignore that.

85 She was the younger of two children, although each of her parents had children from previous relationships. She was brought up in Bronte. Her father was a house painter and her mother worked as a cleaner and in factory work. They separated in 1990. Both of her parents had abused alcohol and her father was physically abusive towards her mother on occasions.

86 SW told Dr Nielssen that she did well at school. She attended Randwick Girls High School and left at the end of Year 10 (Dr Nielssen) or in the middle of that year (Ms Duffy). She had some employment experience after leaving school until she met BW in August 1990 at the age of 17. They commenced living together a year later and were married in March 1992 when she was pregnant with their first child. The second child was born in March 1994. Ebony was born in March 2000 and the fourth child was born in March 2002. SW has been in receipt of government benefits for the entirety of the marriage.

87 The family lived in various Sydney suburbs until they moved to Matraville in 2000, moving into the Department of Housing accommodation in Beauchamp Road in January 2001. The move to Hawks Nest occurred on 31 August 2007.

88 SW claimed that BW deterred her from having contact with her parents. She said she last saw her father in 1993 and her mother in 1994. Since she has been in custody, however, her mother has been visiting regularly and she described their relationship as “very close”.

89 Dr Nielssen interviewed SW in March and June 2008. He described the interviews as “lengthy”. In respect of the first interview he reported that, “her manner was reserved and her range of emotional expression was restricted in that she did not appear especially depressed or angry despite the subject matter being discussed”. He noted, however, that she “was briefly tearful when discussing the plea at the end of the interview”. He reported that in the second interview “her range of emotional expression was again quite limited and she did not appear pervasively depressed”. He elaborated in his oral evidence by saying that SW, “described quite distressing topics in a fairly bland way, with little in the way of sadness or anger or other outward emotion”. He thought she either had a personality that lacked emotional reaction and a capacity for empathy or ability to recognise another person’s feelings, or that the restriction in emotional range was a consequence of longstanding physical or emotional abuse.

90 Dr Nielssen expressed the opinion that SW’s intelligence was in the “higher part of the normal range”.

91 The history given by SW to Dr Nielssen included that she was under the control of BW and over the years had lost the capacity to act on her own behalf and had little say in the care of their children. She claimed that he had been physically abusive towards her. She had left him on an occasion in 1993 after such an episode and lived in a women’s refuge. She had resumed the relationship with him because she thought he would change. SW gave evidence to this effect in the proceedings on sentence. She spoke of another occasion when she had left BW but decided to return the following day after he had claimed in a telephone conversation that he had taken a drug overdose.

92 Dr Nielssen quoted SW as having told him:

I felt so low all the time … with [BW] being so unpredictably violent all the time … he’d wait for a chance to start trouble … he threw me around the room … pulled my hair and kicked me … even before we were married.

93 As to the squalid state of the house at Matraville she told Dr Nielssen, in effect, that it was BW’s fault. She told him that all she did was cook and clean and that he just made more and more mess. Her evidence on that topic at the trial was somewhat different:

Well, having to look after [BW and the three children] and doing the housework and that as well, I had problems with my back, I was in a lot of pain and things got a bit too much.

94 SW also gave evidence in the proceedings on sentence of other negative aspects of her relationship with BW. These included claims that he controlled all of the money such that she could not access her share of funds in their joint bank account as she wished. She claimed that she was not permitted to leave the house without his permission. She had no house keys. She could not drive a car and he refused to teach her. She had to depend upon him for transport, either by driving her or allocating money so that she could use public transport. Her claims also included that he had forced her into engaging in bondage and discipline sadomasochistic sexual behaviours with paying clients in their home from 1992 until 2004.

95 SW gave evidence of a variety of health problems she had experienced during her life. She described an eating disorder since the age of about twelve. She had always considered herself overweight. She weighed some 45 kilograms when she went into custody and said in evidence in the trial that she had since put on about 10 kilograms. A number of witnesses called by the Crown remarked that she looked healthier than when they had seen her in 2007. She has also suffered from asthma since her youth and irritable bowel syndrome on and off for more than ten years. In February 2007 she was briefly hospitalised for an operation following a diagnosis of endometriosis and ovarian cysts. She suffers from lower back pain. She told Dr Nielssen that the latter was from a fall during her first pregnancy. In her trial evidence and in the history she gave to Ms Duffy she said the pain was from a fall that occurred in 1999. There was no evidence in the sentence proceedings of any particular physical health problem that she currently experiences although I assume the asthma and, on occasion, the irritable bowel syndrome persist.

96 In terms of emotional health, Ms Duffy reported that SW had recounted a history of self harming behaviour from 1991 involving overdosing on prescribed medications and “slashing up” which she related to events concerning her treatment by BW. She also gave a history of suffering anxiety attacks for most of her life.

97 Alcohol has not been a problem for her. She has used cannabis since the age of 15 up until early 2007 but there is no evidence that this was at problematic levels.

98 SW said in her evidence at trial that whilst at Hawks Nest she was consuming 8 to 10 Panamax, 6 to 15 Valium, 2 to 6 Voltaren Rapid and 8 to 12 Panadeine Forte per day. She said it made her feel like being in a dream like state, like she wasn’t really there. She said that she was prescribed the Valium after being hospitalised following an anxiety attack in 1997 and the Panadeine Forte after the fall in 1999. In contrast to her evidence at trial, the history given to Ms Duffy included that she took more than 20 Panadeine Forte a day if she was in pain.

99 Professor Starmer gave evidence that the normal therapeutic dose of Valium was three tablets (5 mg/tablet) per day although it could be prescribed in dosages up to eight tablets per day. Eight tablets per day was said to be the maximum therapeutic dose for Panadeine Forte. Taking up to 15 of the former and 12 of the latter (or more than 20) per day would amount to abuse of those medications. SW, however, is reported by Dr Nielssen to have “denied … ever abusing medication”.

100 Mr Stewart, counsel for SW, informed me from the bar table that SW had completed a 12 week drug and alcohol program in prison. The Crown conceded I could accept this without the need for formal evidence.

101 Dr Nielssen concluded that “it was not clear that [SW] met the accepted criteria for the diagnosis of any major psychiatric disorder”. Although she had claimed to have been chronically depressed, she did not appear especially depressed during the interviews and she had not been treated for depression by the prison psychiatrists who had seen her regularly. Dr Nielssen, however, did note the presence of a number of factors that would support a diagnosis of “personality disorder”, or “a disabling level of pervasive and maladaptive personality traits”. They were SW’s abnormal emotional responses; distortions in her interpretation of events; her account of chronically depressed mood and episodes of self harm; and her account of putting up with an abusive relationship for as long as she did. He added that, “her alleged failure to provide adequate care for her children was also consistent with impairment in the capacity for empathy associated with severe personality disorder”. Whilst noting those matters, Dr Nielssen stopped short of making a diagnosis of personality disorder because of the lack of sufficient corroborative material.

102 Dr Nielssen concluded his report as follows:

From the history elicited, it did seem that [SW] had developed the learned helplessness of women in abusive relationships. She reported being closely controlled with the threat of violence over many years to the extent that she became completely isolated and had no ready means to leave the relationship, especially as she had the care of three children with various disabilities. Hence it is possible that [SW] would be able to raise a defence arising from “battered women’s syndrome”, which is not a psychiatric diagnosis but a set of circumstances that is recognised in law to arise in women who are subjected to chronic physical abuse to the extent that they are deprived of initiative and a capacity for free will. The combination of her own physical problems and her lack of initiative may have affected her capacity to appreciate the state of her child’s health or attending to her needs.

103 In oral evidence the doctor explained the last sentence of that paragraph by saying that he did not think that SW’s capacity to appreciate the physical circumstances of the child were greatly affected other than to say that she probably became used to the child’s poor health. He said it was more in her capacity to attend to the child’s needs which was very much limited by her husband’s control of the situation, both with money and her personal freedom and also her own physical limitations in being able to keep the house clean and to tend to the child.

104 Much of this, of course, depends upon whether one accepts the evidence of SW as to those matters. Dr Nielssen conceded that his view of SW’s personality was, to a large degree, dependent upon an acceptance of the history she gave. He also accepted that there was nothing in the history he obtained that could offer the slightest explanation why SW would not have noticed the change in Ebony’s appearance from March 2006 to November 2007. As to her eating disorder, whilst he said, in effect, that it has been known for anorexic adults to poorly nourish their children, he added that it is typically an enduring attitude, rather than one that fluctuates over time.

105 Dr Nielssen explained that it was known for women who stay in an abusive domestic relationship to have ambivalent feelings towards their partner. It was more likely for such women to remain in the relationship if they do not have outside support, such as with family or friends. He explained that such women often develop a protective mechanism whereby they learn not to be assertive in respect of their partner. Ms Duffy gave similar evidence.

106 Dr Nielssen did not have the benefit of viewing the lengthy recording made on 9 November 2007 when the police executed the search warrant at the home. It is patently obvious from viewing that recording that BW was co-operative and compliant whilst SW was, as between the two of them, dominant and assertive. At an early stage she snatched the occupier’s notice out of BW’s hands as he was trying to read it. She insisted upon making telephone calls in the kitchen as the police were endeavouring to have her remain in the living room so that they could explain the search warrant procedure to both herself and BW. Whilst BW was, generally speaking, content for the police to look at and to seize whatever they wished, SW made a number of demands about what she considered they could and could not take. She even asserted her view that the police should not even look at certain material.

107 At the time of writing his report Dr Nielssen was obviously unaware that SW would give this evidence at the hearing on sentence:

Q. What would you say to a suggestion you weren’t exactly incapable of dishing out a bit of corporal punishment?
A. I have.

Q. You have. And you’ve dished some out to your husband too, haven’t you?
A. Well, what am I supposed to do? Just lie there or stand there and let him hit me and kick me and whatever, am I?

Q. I’m not saying--
A. Throw me about?

108 When the essence of these types of things were put to Dr Nielssen he agreed that they are the types of behaviours not usually associated with a person the subject of “battered women’s syndrome”. Ms Duffy also agreed but added that such behaviours are not inconsistent with a person living in an abusive relationship. She said it was possible for such a person on occasion to react explosively or angrily but still be in a position of not being able to extricate themselves from the relationship.

109 In contrast to her presentation in the two interviews with Dr Nielssen, Ms Duffy reported that SW was, “very tearful and distressed when discussing her daughter’s death”. Ms Duffy saw SW a year after Dr Nielssen, on 31 March and 21 April 2009. Ms Duffy’s report contains an even more detailed history provided by SW of her relationship with BW. It is, however, of similar tenor to that provided to Dr Nielssen and recounted in her evidence on sentence.

110 Ms Duffy administered two psychometric tests in the form of questionnaires that SW completed. She formed opinions based upon the results of those tests and upon an evaluation of the history provided which are encapsulated in the latter part of her report:

It is considered that [SW’s] dissociation in response to her chronic trauma state arising from her abusive relationship may have blinded her literally to the plight of her emaciated daughter. Her perceptions may have been distorted to the extent that she believed that [Ebony] would ‘come good’ as she had done before. Thus it came as a real shock to [SW] that her daughter had starved to death literally in front of her eyes and that she had not realised it. Her multiple psychological problems including dissociation may have detached her sufficiently from reality that she did not recognise the extent of her daughter’s starvation.

It is considered that [SW] has a number of severe psychological conditions although she is not mentally ill. She shows evidence of personality disorder and profound depression and anxiety as well as Post Traumatic Stress disorder. Her involvement in [a] psychologically damaging relationship has altered her perceptions and her perspective on a number of issues, and she will require considerable psychotherapy to come to terms with her role in the death of her daughter and recover from the abuse perpetrated on her over so many years.

111 A shortcoming of one of the tests administered to SW in April 2009, the “Trauma Symptom Inventory”, was that it called for responses that related only to the previous six months. This test was administered when SW had been charged with the murder of her own child and had been in custody on remand for almost eighteen months. As the results of this test were a significant contributing factor to Ms Duffy concluding that SW was experiencing Post Traumatic Stress disorder and disassociation, those conclusions must be viewed with caution.

112 A shortcoming in relation to the other test, the “Millon Clinical Multiaxial Inventory – III” is that it produces some results which are time specific (current or childhood) and some which are general and not time specific. One of the outcomes of the Millon questionnaire was a finding of Alcohol Dependence, but the evidence was that SW was not a significant consumer of alcohol and had not been so since her teenage years. Notwithstanding these matters, the test results should not be discounted completely because Ms Duffy did see some consistency between the test results and the general history she obtained

113 A potential shortcoming of both tests, and the opinions Ms Duffy expressed based upon them in conjunction with the history, is that the sole source of the material is SW herself. It is not apparent from Ms Duffy’s report, or her oral evidence, that there was any validation against objective independent material. Indeed, there was some material that indicated that aspects of the history given were incorrect. Another matter of concern in relation to Ms Duffy’s evidence, including her report, is that she tended to stray into psychiatry, for example in expressing an opinion about SW experiencing dissociation. It is not appropriate for a psychologist to enter into the field of psychiatry: R v Peisley (1990) 54 A Crim R 42 at 52.

114 The Crown Prosecutor gave Ms Duffy a brief summary of the evidence of Drs Nadesan and O’Loughlin as to Ebony not being able to move or support herself, not being able to chew or swallow, and likely being comatose in the days prior to death. There was then this exchange:

Q. All of which would indicate that what [SW] was telling you about the child walking around on Friday evening, as being an untruth, wouldn’t it?
A. It does look like that.

115 Ms Duffy obtained the impression from SW that she had not disclosed the physical abuse by BW to anybody, including to doctors. Ms Duffy conceded that she “probably would (be) very surprised” to learn that SW was asserting in her evidence on sentence that she had in fact told Dr Ktenas, general practitioner, and “even more surprised” that she had told a second doctor, a Dr Jacobs.

116 SW told Ms Duffy that Ebony was thin. She conceded to being “surprised” that SW had said in her evidence that Ebony still appeared to her like the “chubby six year old child” she was some 20 months earlier.

117 In relation to the financial arrangements in the marriage, Ms Duffy was unaware that SW had a keycard for the joint bank account and that on some occasions SW went out of the home on her own to do shopping and the like. Ms Duffy had been given to understand the contrary.

118 There is a very real question as to whether SW should be believed in respect of the history she gave to Dr Nielssen and Ms Duffy and the evidence she gave before me as to her relationship with BW. The fact that she gave the same history – in general terms – to them both is a factor supporting her credibility. On the other hand, however, I note the following matters that reflect adversely upon it:

· Her claim to Dr Nielssen that she had never abused medication is inconsistent with her evidence before the jury and the history given to Ms Duffy.

· Whilst one of the most obvious examples of her claim to having been dominated by BW was her being forced to engage in bondage and discipline activity with paying visitors to the home, she made no mention of it to Dr Nielssen. In the light of the fact that there were two lengthy interviews with the doctor, and that she related a great deal of the history of her relationship with BW to him, the explanations in her evidence for not telling this to the doctor – “That’s how I was at the time. I didn’t – I’d just like sit there and mainly listen and I wouldn’t volunteer much of anything” and “I found those other matters easier to talk about” – are difficult to accept.

· The inconsistency of her description of BW being the dominant person in the relationship with the interaction between the couple at the time of execution of the search warrant.

· Her claim that she had told the general practitioner, Dr Ktenas, on “maybe five/six occasions” of violent conduct by BW, including specific instances of physical abuse. She said that on one such occasion she told the doctor of having been kicked in the leg and around the ribs, although the doctor did not examine her for any injuries. Dr Ktenas, on the other hand, gave evidence that he had no recollection of SW claiming to be in fear of BW, let alone having been assaulted by him. He checked his notes of consultations with her and found no record of anything of that nature. It is inconceivable that if SW had reported such matters to her general practitioner, and as often as she claimed, that there would be no record.

· SW was asked about the reason for the drug overdose she claimed she took in 1991 and she said, “Because I was sick of being hit and that” . She was then referred to Dr Nielssen’s report where he had said, “She reported medical treatment after an overdose of paracetamol on 13.12.91 after [BW] threatened to leave her” . She was asked if that was what she told the doctor and she said, “I may have” . She was then asked which of the two explanations was correct and she replied, “Probably because he threatened to leave me” . Her first answer is obviously inconsistent with the latter. It is also inconsistent with her having told Ms Duffy that the first occasion BW was violent towards her was on Christmas Day of 1991.

· There is a note in medical records by a social worker in early 2000, in the context of noting behavioural problems in the elder siblings, that “[SW] and [BW] state there is no domestic violence at home and that the children do not observe aggressive behaviours at home” . There is also a note of 21 March 2000 that, “[SW] denies that any problems exist at home with respect to violence, neglect or deprivation. She states that she and [BW] do argue at times but are able to resolve these issues between themselves” . (Exhibit BB/SB tab 5).

· SW told Dr Nielssen that after Ebony’s death she went with BW to the South Coast because he “wanted me to come with him” and they had “just wanted to spend some time with each other” . This is inconsistent with her account of her fear of him, although it is accepted that such compliant behaviour may be seen in a domestic violence setting. However SW also said that after she was taken into custody she was very much relieved at finally being away from him.

· Contrary to the above, in an assessment by Justice Health staff soon after she came into custody it was noted that she was, “tearing up a little when talking about her husband” and had “(f)ears for his safety as she heard male prisoners threatening to kill him” . It was also noted, “Only worry is her husband”, “concerned about husband and his safety” and “professed great love for her husband (‘we been together for 18 y’)” . Finally, there is a note under the heading “Current thoughts of Suicide/Self-Harm” – “Denies, wants to live for husband” . (Exhibit B1/S1 tab 6).

· SW told Dr Nielssen that after going into custody, “her only contact with [BW] had been brief sightings at occasional court appearances … and an inter-gaol phone call in April” . That was not the “only contact”. She failed to tell Dr Nielssen that she had also written about thirty letters to BW as well.

· SW claimed that BW actively deterred her from having any contact with her parents. Dr Tzioumi, a paediatrician, asked the eldest daughter why she had no contact with her maternal grandparents and she replied that it was because her parents had told her it was because they are not nice people.

· The matters I have referred to above (at [114] to [117]) where the evidence given by SW conflicted with the history she gave to Ms Duffy.

· SW’s claim that Ebony was up and about, walking, sitting and eating a few mouthfuls of breakfast and dinner, on Friday 2 November 2007 was demonstrably false.

· The manner in which SW gave evidence did not support a finding that she was a credible witness. She frequently avoided giving a direct response to difficult questions.

119 I accept there may have been some level of domestic violence in the relationship. If there was, it is more likely that it was relatively minor and occurred in years past rather than in more recent times. I cannot accept, however, that the level of violence, control and domination by BW was anywhere near that which SW has claimed. SW has a history of blaming others – doctors and government officials – for negative aspects in her life. There is some merit in the proposition that was put to SW by the Crown Prosecutor, although denied, that she was reduced now to blaming BW in an endeavour to minimise her responsibility for what occurred to her daughter.

120 I am not satisfied that the evidence SW gave about the level of her use of prescription medication can be accepted. One reason is her claim to Dr Nielssen that she had never abused such drugs. Another is that Professor Starmer gave evidence of the effect such drugs can have upon a person’s memory. Dr Nielssen reported that SW’s “command of detail and her capacity to retrieve information such as dates was remarkable”. This was in marked contrast to BW, as to which I will say more later. Then there is the interaction between the couple that can be seen in the search warrant recording. It conveys that BW was subdued, perhaps from the sedating effect of medication, whereas SW was far more alert and assertive.

121 A further problem in accepting the opinions of both Dr Nielssen and Ms Duffy is that they made their assessments and wrote their reports prior to the trial. They assessed SW on the basis of her account of events and not on the basis of the jury’s verdict which I am satisfied beyond reasonable doubt involved, at least, an acceptance that SW fully realised the probability of Ebony dying and deliberately omitting to do anything about it. For example, Dr Nielssen spoke of the possibility of SW being able to raise a particular type of defence. Neither he nor Ms Duffy took into consideration SW’s proven guilt in formulating the opinions they expressed in their reports. The various problems I have identified in relation to the reports and evidence of Dr Nielssen and Ms Duffy mean that I can place little weight upon them.

122 SW gave evidence that she has been in protective custody since her arrest. For the first month she had no association with any other inmates. For the next three and a half months she was in a unit where she associated with only one inmate. Since then she has been in a unit where the inmates can associate with all other protection inmates in that unit. At the time of giving evidence on sentence she said there were about 30 other inmates. She said education facilities in that area are very limited. Being in protection was not her choice, although she said she would not want to move in to the general section of the gaol because threats had been made against her. She understands she was placed in protection because of the nature of her offence. A letter from the Silverwater Women’s Correctional Centre confirms the limited opportunities for employment and education for protection inmates.

123 The absence of prior convictions is a matter that must be taken into account.

124 It was submitted, and I accept, that SW is unlikely to re-offend. The circumstances in which the offence occurred were quite unique and unlikely to be replicated in the future. She has otherwise not shown any propensity to offend.

125 Next, it was submitted that I should find that she has good prospects of rehabilitation. The basis of that submission was that she has been engaging with psychiatrists and psychologists in gaol and that she has completed the drug and alcohol program I referred to earlier. I have accepted the latter but I have no evidence of the former apart from what SW has said. Dr Nielssen confirmed that she had been seeing psychiatrists in the gaol but not that she was “engaging” with them. Nevertheless, to the extent that rehabilitation means she will not further offend I accept the submission as I have already found that she is unlikely to do so.

126 It was conceded by Mr Stewart that I could not make a finding that SW is remorseful but it was submitted that I should find that she has accepted a level of criminal responsibility for the death of Ebony to the extent of manslaughter. Whilst she did not plead guilty to that offence, it was conceded that the jury could return a verdict of guilty for that offence. I will take that into account.

127 Mr Stewart submitted that the depression he contended I should find, coupled with SW’s physical ill-health, impacted upon her ability to cope and to respond to the needs of her children. As to the “depression”, I am not prepared to accept that upon the evidence of SW, or upon the histories that she gave to Dr Nielssen and Ms Duffy, because of the doubts I have concerning her credibility. A number of the medical witnesses called by the prosecution did, however, agree that SW appeared to be depressed. Invariably, however, when this was clarified in re-examination it was said that it was in the nature of her “having the blues” rather than a matter of clinical depression. I am also not prepared to accept that her “ability to cope” was impaired in any substantial way because of that aspect, either alone or in combination with any physical health issue.

128 Next it was submitted that I should take into account that SW lacked family or other outside support and so she was isolated within a dysfunctional home. I am not prepared to accept that this was a matter not of her choosing because it depends upon an acceptance of her evidence alone. I have earlier referred to evidence that is in conflict with the proposition that she had no contact with her family because that was demanded by BW.

129 Another matter that Mr Stewart submitted that I should take into account was that SW “has not been an emotionally healthy person”. He contended that this could be traced back to matters such as the domestic violence she witnessed as a child and her commencing her relationship with BW when she was aged 17 and he was 29. A difficulty with that is that it depends upon a psychiatric or psychological assessment of SW and those which I have are flawed because they are based upon a history that I cannot be satisfied is reliable with regard to crucial matters.

Subjective circumstances of BW

130 The following relating to BW’s subjective circumstances has been derived from his evidence and that of Professor Starmer at the trial and a report by Dr Anthony Nicholas, psychologist. Dr Nicholas interviewed BW on a single occasion in July 2009, following the jury’s verdict.

131 BW was born in May 1961 and he was aged 46 at the time of the offence.

132 He has no previous criminal convictions, a matter that I am required to take into account in his favour: s 21A(3)(e) Crimes (Sentencing Procedure) Act. There was otherwise no evidence of prior good character. Indeed, because of his prior prescription drug addiction and the methods he employed to obtain such drugs a finding of good character would be difficult to make. Mr Austin, counsel for BW, accepted that was so.

133 The history of his meeting SW, their marriage and the birth of their four children has been recounted earlier.

134 BW left school in Year 11 and went to work for his father. The work came to an end when his father was gaoled for fraud. BW has been on a disability pension since around that time. He said at the trial that this was because of his addiction to Valium since the age of 18. He related this to a diagnosis at that age of severe anxiety neurosis. He suffered panic attacks and severe somatic distress.

135 He said that in 2007 he was taking 25 or more Valium tablets per day as well as 8 Panadeine Forte tablets. He has detoxed from this medication since being in custody. His evidence at the trial was to the effect that he only now realised how such heavy doses of medication were adversely affecting his life. He conceded that his memory for events when he was taking the medication has also been adversely affected.

136 Professor Starmer confirmed the proposition that a person’s memory can be so affected by the taking of diazepam, the active constituent of Valium. He said that this can be an effect of taking it at therapeutic dosage levels but that the risk of amnesia increased at higher dosage levels. However, this had to be offset against the tolerance that the person may have developed. BW must have built up a considerable tolerance if he had been taking Valium for over 20 years and required to take 25 or more tablets per day to achieve the desired effect. One matter that tends to confirm that he was using the drug at substantial dosage levels is the adverse reaction he had following his arrest when the police had to take him to a hospital. Another matter is that, in contrast to SW, BW’s memory for details was sometimes quite vague.

137 Professor Starmer gave evidence that the possible undesirable side-effects of diazepam included fatigue, drowsiness, confusion and depression. Undesirable side-effects of Panadeine Forte, arising largely from its codeine component, included nausea, vomiting, constipation, dizziness, drowsiness and impaired mental and physical abilities. However, with both drugs, long term use led to the build up of a tolerance and unless the dosage was increased the person would not achieve the same desired effects. The person would be able to perform simple or routine tasks competently but there would be an impairment of the ability to perform unusual or difficult tasks, or tasks that required the exercise of choice.

138 BW was obviously capable of driving a car, shopping, paying bills, studying the form guide, placing bets over the internet and engaging in trading on eBay. The Crown Prosecutor asked Professor Starmer whether the diazepam BW was taking would effect his ability to notice the change in Ebony’s appearance from March 2006 to November 2007 and he said that he did not think it would. I am not persuaded that BW’s abuse of medication had any bearing upon his ability to appreciate what was happening with Ebony or upon his ability to do something about it.

139 Dr Nicholas administered the Personality Assessment Inventory which is said to produce a “detailed profile of adult personality”. Dr Nicholas reported that the data from this test identified three diagnostic considerations – Post Traumatic Stress Disorder, Alcohol Dependence and Comorbid Major Depressive Disorder. He also said that BW “may be said to be suffering from a Borderline Personality Disorder”. He said the test results coincided with his clinical evaluation. Dr Nicholas concluded and recommended:

The history of this matter is pathetic; not in a derogatory sense but in the pathos of a seriously disjointed life eclipsed by the appalling death of an innocent child.

[BW’s] remorse and contrition are evident despite the disorientation experienced by the impact of habitual poly substance abuse.

Counselling is considered not only necessary, but essential for [BW’s] rehabilitation, at the Court’s discretion, congruent with his sentencing outcome.

140 Dr Nicholas’ report is problematic. He is qualified, eminently it would seem, as a psychologist but the report includes diagnoses of a psychiatric nature. I commented earlier about psychologists entering into the field of psychiatry. The report sets out very little of the history that BW provided and upon which the opinions are based. Some matters were clarified in his oral evidence. His diagnosis of Post Traumatic Stress Disorder relates to the death of Ebony. It was not something BW was experiencing prior to that time.

141 One particular matter that gives rise to some unease about the report is the statement that the “use of alcohol has been extensive and much higher than that usually consumed by the average person”. This was the basis of the diagnosis of Alcohol Dependence. Mr Austin accepted that it was not a condition that existed at the time of the offence, or indeed for quite some years. When pressed as to what it was that BW told him about alcohol consumption the doctor said, “that it was fairly regular and – well fairly regular in his habit of use”. He said that he then made a “clinical inference” - because BW said he was abusing prescribed medication the doctor said that it was more likely that if he drank alcohol he was abusing that as well. I am disturbed by this process of reasoning. Moreover, if BW did say he was a “fairly regular” consumer of alcohol, it raises a question as to the reliability of the history that he gave to the doctor.

142 The reference to “remorse and contrition” in Dr Nicholas’ conclusions was based upon BW repeatedly saying during the interview that he “failed his daughter” and that he should have been more aware and should have done something. It is very difficult for me to make an assessment of this as I have not heard evidence from BW on sentence. At trial he contended that he was not guilty of both murder and manslaughter. I cannot tell from what he is reported to have said to Dr Nicholas whether he has genuinely accepted his responsibility for Ebony’s death.

143 Dr Nicholas concluded that BW was not aware of the demise of Ebony because he was “basically off his face more often than not on drugs” and that “he really just simply wasn’t with it”. He conceded, however, that he did not obtain a history of the other activities BW was engaged in whilst at Hawks Nest. It may well have made a difference to the doctor’s assessment if he had known about BW’s apparently successful gambling activities, his eBay trading and the like.

144 Whilst he maintained that he was not guilty of both murder and manslaughter, in contrast to SW who conceded that she should be found guilty of manslaughter, BW did take some responsibility for the death of Ebony in the evidence before the jury. He accepted that he should have paid appropriate attention to her health and well-being but that he did not because, he said, “I was in my own world there”. He was asked if he had come to believe that he did not properly care for her in the time they were at Hawks Next and he replied, “Yes. I’m not on the tablets any more”. He also expressed a realisation that everyone else was not to blame and that persons from the various government, medical and welfare agencies that had sought to engage with the family had only been trying to assist.

145 I am not able to find in BW’s favour that he is remorseful for his offence. However, the matters I have just mentioned are to his credit.

146 Although it was not submitted on behalf of BW, the Crown Prosecutor conceded in his submissions that I could find that BW is unlikely to re-offend and has good prospects of rehabilitation. I am satisfied of those matters. By the time BW is released he will have had a lengthy time of not abusing medication. The circumstances of his offence are quite unique and he is most unlikely to be entrusted with the care of a young child again. In addition, I take into account that he has not otherwise offended against the criminal law and is now in his late forties.

Victim impact statement

147 A victim impact statement was made by Ebony’s oldest sister and it was read to the Court on her behalf by Ms Kluss of counsel. It sets out the range of terrible emotions she has experienced since her sister’s death and the painful memories that she says will never leave her. I expect that the second oldest sister probably feels the same. I acknowledge their grief and extend the Court’s condolences.

Facts relevant to objective seriousness of offences

148 I am satisfied beyond reasonable doubt of the following facts which bear directly or indirectly upon an assessment of the objective gravity of the offences.

149 Ebony was 7 years old at the time of her death but she was considerably more vulnerable than most children of that age because of her medical history.

150 She was a difficult child for a parent to manage with behavioural problems. However I accept the evidence that these problems were significantly less in 2007 than they had been in earlier years.

151 Throughout her life, both offenders failed to do all they could to seek assistance for Ebony in relation to her medical, developmental and educational problems and needs. This was through either incompetence, self interest, disinterest, negligence, or a combination of some or all of those factors.

152 There was a complete absence of medical oversight of Ebony’s condition for the last twenty months of her life.

153 Ebony was denied simple childhood pleasures and stimulation, the more so in the latter part of her life – for example, outdoor activities, toys, games, and playing and socialising with other children. Similarly, she was excluded from family celebrations such as birthdays and Christmas at least in the last 16 months of her life.

154 She was a prisoner in her own bedroom for lengthy periods of time when the family lived both at Matraville and at Hawks Nest. She could not even look out of the window at Matraville for the last 8 months that the family lived there because the window had been boarded up. One can only imagine what she thought from the confines of her bedroom when the rest of the family were celebrating birthdays and Christmas.

155 The bedroom in which she was confined at both homes was filthy. It doubled as her toilet.

156 Ebony was the subject of chronic starvation over many, many months (per Dr O’Loughlin).

157 Ebony’s hygiene was seriously neglected. The state of her clothing and her hair at the time of her death is particularly pertinent. The hair was long, matted and strewn with filth including faecal matter. The clothing was heavily stained, possibly from a combination of vomit and faecal stains and other bodily fluids over a period of time. Whilst this was at the time of her death, there is no reason to think that it was not an enduring state of affairs.

158 Both parents were aware of the squalid conditions in which Ebony was living. The first thing that struck all the ambulance and police officers who attended the home on 3 November 2007 was the stench of urine in her bedroom. BW’s excuse that he breathed through his mouth and so he smelt nothing must be rejected as palpable nonsense.

159 Ebony’s appearance deteriorated from some time after March 2006. I am satisfied that she did not appear in any of the family photographs after July 2006 because of her increasingly pitiful condition. For the same reason she was kept out of public view.

160 By the time the family moved to Hawks Nest on 31 August 2007, eight weeks before Ebony’s death, she was thin and unwell. Both offenders were aware of this. She appeared to an independent witness to be around 3 years of age.

161 The use or abuse of prescription medication by both offenders and whatever psychological problems they might have had did not deny them the ability to perceive Ebony’s deteriorating condition or the capacity to do something about it.

162 In a gross abrogation of his parental responsibility, BW simply ignored Ebony. He knew that she was thin and unwell at the time of the move to Hawks Nest and yet he displayed no interest in her whatsoever. He realised she was being confined to her bedroom. Even when locked in that room, the distress that she was in that Dr O’Loughlin spoke of would have been audible. BW could not have cared less. A father could show no less love to his child. The abject cruelty that had become her existence was of no concern to him.

163 Rather than being something that might reduce his moral culpability, BW’s preference to absorb himself in his abuse of prescription medications and his punting and other personal activities was a further indication of his self interest and lack of concern.

164 BW’s abuse of prescription medication provides no excuse for him and does not reduce his moral culpability.

165 SW might not have intended that Ebony die, but she fully realised that she would do so and she deliberately chose to do nothing to prevent it. Despite submissions to the contrary, in my view there is little, if any, difference in the circumstances of this case between those two states of mind that are elements of the crime of murder.

166 I am not satisfied that SW deliberately set out upon a long term plan to kill Ebony. I am, however, satisfied that she watched Ebony deteriorate over a lengthy period of time and that Ebony’s state in the last few weeks of her life, at least, would have been obviously dire. She exercised a deliberate choice to do nothing that might save her as the situation went from possibility to probability to certainty that Ebony would die without intervention.

167 The distress that Ebony experienced, as described by Dr O’Loughlin, was extreme. SW would have been well aware of this. To allow a child to experience that level of distress over a significant period of time leading up to the child’s death is unimaginably heartless and cruel. This is even more so with a child who was so young, who was more vulnerable than most and who had a very limited ability to verbally communicate.

168 SW’s personal circumstances, her chronic pain, her use of prescription medications (although not at the level she has claimed) and all of the other matters discussed earlier do not reduce her moral culpability for her offence. She was well capable of fully appreciating the condition of her child and well capable of doing something about it. She is an intelligent person. It would not have taken much to prevent Ebony from dying – even near the end. A simple call to triple 0 would have sufficed. Dr O’Loughlin’s evidence was that the child’s life could have been saved even only hours before she died.

169 The Crown submitted that I should find an aggravating factor was that the offences were committed in the presence of Ebony’s two sisters. Whilst they were obviously living in the same house, there was no evidence as to what they saw or were otherwise aware of. I do not accept that submission.

170 The Crown also submitted that I should not find that the breach of a parent/child trust was an aggravating factor. It was inherent in the offences and so I do not make that finding.

171 Mr Stewart submitted that I should find established the statutory mitigating factor that the offence was not part of a planned or organised criminal activity: s 21A(3)(b) Crimes (Sentencing Procedure)Act. That is obvious but I do not think it is of any real significance. I note that by s 21A(5) the presence of an aggravating or mitigating factor listed in s 21A(2) or (3) does not require that the sentence be increased or reduced.

Sentencing of BW for manslaughter

172 In relation to BW, the Crown submitted that I should find his offence fell “at or toward the upper end of criminality”. Mr Austin submitted that the finding should be “around the middle” or “even if somewhat above, but not at the top of the range”

173 Mr Austin submitted that I should avoid any assessment of the seriousness of BW’s offence that would incorporate a conclusion that he realised the probability of death occurring. This included, he submitted, finding that BW was aware of the dire condition that Ebony was in prior to her death, because if he was so aware, he would have realised, like anyone would have realised, that she would probably die. I accept that it is crucial that I bear in mind that BW was acquitted of the charge of murder and that I must avoid an infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.

174 Mr Austin’s submission was that I should sentence BW upon the basis that he failed to be aware, when he should have been aware, of Ebony’s parlous state. I am satisfied that he was aware that she was in a parlous state. I am satisfied that he saw her at the time of the move to Hawks Nest at which time she was thin and unwell and looked less than half her age. He admitted to having seen her on at least three further occasions after the move, once within a day or so, but the evidence was incapable of establishing when the other occasions were. One thing is certain however. As terrible as she might have looked at the time of the move, she would only have deteriorated after that. Nevertheless, I accept Mr Austin’s submission that BW did not see Ebony once she had reach the point where it would have been obvious that she would probably die and his negligence was in failing to be aware of the state she was in, thereby failing to do anything about it.

175 It does not, in my view, mitigate BW’s culpability to say that he could assume that Ebony was being properly cared for by his wife. He admits to having seen Ebony at Hawks Nest, albeit on a limited number of occasions notwithstanding they lived under the same roof. He knew she was thin and unwell. He would most certainly have been aware that she was being kept in a putrid bedroom. He would certainly have noticed the state of her hygiene, from the appearance of her hair at least. He claimed that he never went into the bedroom, something that is hard to accept, but the smell that I am satisfied he was aware that emanated from that room would also have alerted him to the inadequacies of SW’s care.

176 I have concluded that the objective gravity of BW’s offence is within the worst case category for the crime of manslaughter. To establish an offence of manslaughter by criminal negligence it must be proved that the negligence of the offender merits criminal punishment because it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; it involved such a high risk that death or really serious bodily harm would follow; and the degree of negligence is so serious that it should be treated as criminal conduct. In this case there was a high risk of death, not just of really serious bodily harm. The difference between the standard of care that a reasonable person would have exercised and that which BW exercised was vast. He provided no care at all. And he did not care. It must be borne in mind that BW’s negligence involved Ebony experiencing an extended period of suffering preceding her death.

177 Mr Austin made the point that what he was submitting as to where within the range of objective seriousness this case fell was in relation to cases of manslaughter by criminal negligence. It is implicit in this that he was submitting there was some distinction in the seriousness of cases of this type and other types of manslaughter. I do not accept that such a distinction is appropriate. All types of manslaughter have prescribed for them the same maximum penalty. What I understand Mr Austin to have submitted might be true as a general proposition because of the absence of an intention to cause harm. However, manslaughter is a crime that can involve an infinite variety of circumstances. The seriousness of an individual case must be determined upon an assessment of its particular circumstances. See R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at [29] and R v Ali [2005] NSWSC 334 at [56].

178 The following principles referred to by Johnson J in R v Thomas Sam; R v Manju Sam (No 18) [2009] NSWSC 1003, also a case of manslaughter by criminal negligence by parents in respect of a young child, are pertinent:

[153] … It is necessary that the sentences to be imposed reflect a significant element of general deterrence given the need for the community to understand the serious consequences of parents breaching the trust reposed in them to care for their infant children, culminating in unlawful homicide of the child. The protection of children is of fundamental importance to society: R v Howard [2001] NSWCCA 309 at [19]. A heavy responsibility rests upon parents to care for a child who is utterly defenceless: R v Wilkinson [1999] NSWCCA 248 at [26]. The fundamental consideration is that the sentences to be imposed must accord with the general moral sense of the community: R v Foulstone (NSWCCA, 18 July 1990).

…

[155] It has been emphasised that the crime of manslaughter extends to a wide variety of circumstances: R v Forbes (2005) 160 A Crim R 1 at [133]-[134]; R v Jagroop [2009] VSCA 46 at [7]ff. The fundamental starting point is that the actions of the Offenders involved the criminal taking of a human life. It is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31].

179 It is also pertinent to bear in mind the following from the judgment of Wood CJ at CL in Regina v Wilkinson (Supreme Court of New South Wales, 9 April 1998, unreported), a case of manslaughter of the offender’s daughter by criminal negligence:

The need for a significant element of deterrence in cases such as the present is obvious, given the inability of young children to fend for themselves and given the difficulties experienced by outsiders, including Department of Community Services staff, in protecting children who are at risk as the result of activities or neglect occurring within the privacy of their own homes. The message which needs to be given to the prisoner and to any other parent or carer who stands by and allows an infant to be seriously hurt, or who, as in the present case, ignores obvious signs demanding immediate attention or other intervention for the protection of the child, is that such conduct is not accepted by the community and it will attract significant punishment under the law.

Carers and parents carry a very heavy responsibility to ensure, when children are hurt or sick that they are taken promptly for medical attention, or that other steps are taken to remove them from risk. Parents – and this is of particular relevance to the present case – are also expected to maintain the degree of fortitude of mind and will of reasonable persons in their shoes in fulfilling that duty.

180 The personal circumstances which I have found in BW’s favour warrant some amelioration of the sentence to be imposed upon him. However, I must bear in mind that the sentence must still reflect the objective seriousness of the crime as I have assessed it: R v Dodd (1991) 57 A Crim R 349. In the present case, of all of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act it is necessary to place particular emphasis upon the need for general deterrence, punishment, making the offender accountable for, and denouncing, his actions (and inactions).

181 In Regina v Hoerler (supra) at [42] Spigelman CJ referred to the “sense of outrage in the community” concerning the manslaughter of a young child by an unlawful and dangerous act of violence being “so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion”. The same consideration arises in the present case.

182 I have considered a variety of cases to which I was referred by counsel involving manslaughter by criminal negligence, particularly those involving a child, but they provide little assistance: see Taber v Regina; Styman v Regina [2007] NSWCCA 116; 170 A Crim R 427 at [102]. Similarly, see Regina v Hoerler (supra) at [31] – [41]. They serve to highlight the wide variety of circumstances in which the offence can be committed.

183 On the issue of special circumstances it was submitted on behalf of BW that he needed an extensive period of post release supervision to deal with his medical, psychological and substance dependence issues as well as to assist him in re-establishing his relationship with his other children. I have considered as well that this is his first experience of imprisonment and he will also need assistance in a general sense in reintegrating into the community after a significant period of living in a closed and structured environment. However I have concluded that the length of the sentence I am to impose will provide more than ample opportunity for post release supervision. No reduction of the non-parole period is warranted. I bear in mind as well that it is necessary for the non-parole period, as well as the overall sentence, to be proportionate to the objective gravity of the offence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [63].

Sentencing of SW for murder

184 In relation to SW it is necessary to give consideration to s 61 Crimes (Sentencing Procedure) Act. Relevantly it provides:

61(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of 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 that sentence.

185 Principles in relation to the application of this provision have most recently been reviewed in Burrell v R [2009] NSWCCA 163 at [235] – [246]. They include:

· The burden of proving that a case falls within s 61(1) is on the Crown and the standard of proof is beyond reasonable doubt.

· It must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed): R v Twala (Court of Criminal Appeal, 4 November 1994, unreported).

· “Heinousness” means “atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked”. The test is therefore a substantial one: R v Arthurell (Supreme Court of NSW, 3 October 1997, unreported).

· The correct construction of s 61(1) is that a life sentence is required if the culpability is so extreme that the community interest, in the combined effect of such of the four indicia as are applicable, could only be met by such a sentence (a construction which would embrace a circumstance where any one or more of those factors may be of itself insufficient or inapplicable): R v Merritt [2004] NSWCCA 19; 59 NSWLR 557.

186 The Crown has submitted that the objective seriousness of SW’s offence of murder is such as to make a life sentence within the appropriate range. Mr Stewart, on the other hand, has submitted that it falls “significantly below the mid range of seriousness for these kinds of offences”. He was referring to offences of murder by reckless indifference as opposed to murder which is accompanied by an intention to kill.

187 Murder by reckless indifference might generally be regarded as less serious than murder with an intention to kill but this is not necessarily so: R v Ainsworth (1994) 76 A Crim R 127 at 139. I have already indicated that in the circumstances of this case there is no real distinction between culpability for murder by either of those states of mind. There was evidence from Dr Nadesan that immediately prior to death Ebony’s body would have appeared the same as depicted in the post mortem photographs. SW agreed with a proposition put to her by the Crown Prosecutor that a person seeing Ebony in that state would realise that it was not just a probability but “a dead set certainty” that she was going to die. She would have appeared in a similar state for quite some time before she died. To my mind, for a person to have done nothing in those circumstances is so morally reprehensible that it could be no more serious if the person actually intended that the child die.

188 Mr Stewart submitted that the seriousness of the offence was less because of an absence of any motive of ill feeling or hatred by SW towards Ebony. I accept that there was no evidence that would support a conclusion that she harboured such feelings. It is not the law that a lesser penalty must be imposed because it is possible to envisage a worse case: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 478. In any event, SW’s complete inaction as it must have become more and more inevitable that Ebony would die, and the distress that Ebony endured that must have been apparent up until she started to lose consciousness, still makes this a murder of the utmost gravity. Ill-feeling and hatred might not have been on her mind but she was cold, callous, cruel and heartless towards her own little girl. She witnessed her suffering over an extended period and chose not to lift a finger to help her. I have no doubt that this case is within the worst case category.

189 Community protection is not a significant consideration. I bear in mind what was said by Tobias JA, with whom Hidden J agreed, in R v Merritt (supra) at [5] – [7]. However, I am satisfied beyond reasonable doubt that retribution, punishment and deterrence are such powerful considerations because of SW’s extreme level of culpability that the community’s interest in those factors can only be met by imposition of the maximum penalty. I should record that I have also borne in mind the fact to which Adams J drew attention in Knight v Regina [2006] NSWCCA 292; 164 A Crim R 126, that such a sentence carries with it no possibility for consideration of release on parole.

190 There are a number of features of SW’s life which have been less than satisfactory. Her childhood years may have been attended by unhappiness. Being in a relationship with a man who was a heavy user of prescription medications must not have been easy. Having four children, one of whom was taken into care soon after birth and another who was developmentally delayed and autistic, must have been difficult. Being subject to her own problems of physical ill-health – back pain, asthma, irritable bowel syndrome et cetera – were burdens she had to bear. There are also the considerations that she will serve her sentence in a form of protective custody because of the nature of her crime, that she has no previous convictions, is unlikely to re-offend and, for that reason at least, has good prospects of rehabilitation. She has accepted her responsibility for what she did to a limited degree. I have given the most earnest consideration to all of the matters that may legitimately be considered in SW’s favour.

191 Notwithstanding my satisfaction that a life sentence is warranted I retain a discretion to impose a determinate sentence: s 21(1) Crimes (Sentencing Procedure) Act; R v Merritt (supra) at [36]. Moreover, I am well aware of the gravity of imposing the maximum sentence: R v Chung [1999] NSWCCA 330. If the objective gravity of her crime was any less, all of the types of matters I have just mentioned would need to be brought into consideration upon the assessment of the appropriate sentence. However, having regard to the extreme gravity of the offence, I am not satisfied that any of the subjective features, alone or in combination, are sufficient to displace the prima facie need for the maximum penalty.

SENTENCE

192 BW

Convicted

Sentenced to imprisonment comprising a non-parole period of 12 years and a balance of the term of the sentence of 4 years.

The sentence is to date from 17 November 2007. The offender will be eligible for release on parole upon the expiration of the non-parole period on 16 November 2019.

193 SW

Convicted

Sentenced to imprisonment for life.

The sentence is to date from 17 November 2007.

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