R v Dawes

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Daniella Dawes [2004] NSWCCA 363

FILE NUMBER(S):
2004/1859

HEARING DATE(S): 29 September 2004

JUDGMENT DATE: 05/11/2004

PARTIES:
Regina v Daniella Dawes

JUDGMENT OF: Dunford J Barr J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1041

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

COUNSEL:
L M B Lamprati SC - Crown
A J Bellanto QC/ M Maxwell - Respondent

SOLICITORS:
S Kavanagh - Crown
Patricia White & Associates - Respondent

CATCHWORDS:
CRIMINAL LAW - Sentencing - manslaughter - mother kills autistic son when suffering major depressive illness - s9 bond - whether inadequate - CROWN APPEAL - Court's discretion - double jeopardy - Crown's failure to seek custodial sentence at first instance - respondent's progress in rehabilitation since given bond

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Crown appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1859
DUNFORD J
BARR J
HOEBEN J
FRIDAY 5 NOVEMBER 2004

REGINA v DANIELLA DAWES

The Crown appealed against a 5-year bond imposed on the respondent following her pleading guilty to manslaughter of her 10 year old autistic son. The plea to manslaughter, accepted by the Crown, was based on substantial impairment of her capacity due to an abnormality of mind arising from an underlying condition, namely a major depressive illness (Crimes Act 1900 s 23A).
The respondent’s son was diagnosed as suffering from autism when he was about 18 months old but, despite the respondent’s best endeavours, she and her husband (the child’s father) were unable to obtain appropriate intervention until he was about 6 years old, at which time they were advised that his progress had been jeopardised by the delay. At this time the respondent’s husband suffered a nervous breakdown and was unable to work for about 2 years.
In September 2001, the family moved from Ballina to Sydney in the hope of obtaining more support in the larger city, but such additional support was generally not forthcoming. There were also problems in the respondent’s marriage due to her husband’s physical and verbal abuse, excessive use of alcohol and gambling. In January 2003, the respondent told her husband to leave the family home, which he did, but shortly afterwards he threatened suicide and was hospitalised for 3 days. He returned to the family home at about Easter 2003 although the marriage was not reconciled. In May 2003, she learned that her stepfather had been indecently assaulting their daughter and on 28 July, the daughter self-harmed. Meanwhile, on 12 June 2003, the respondent’s father died after a long illness and there were disputes with her stepmother concerning his burial and estate, and her grandmother was taken to hospital seriously ill, although she subsequently recovered. The respondent was receiving treatment for depression for which she was taking prescribed medication and in the previous month she had lost almost 10kgs in weight.
On 4 August 2003, when she attempted to get her son ready for school, he would not cooperate and ran off into the house’s rumpus room. The respondent followed him and held her hand over his mouth and nose, thus suffocating him. She then attempted to commit suicide by slashing her wrists and very nearly succeeded. When spoken to by police, she made full admissions, and she pleaded guilty when first offered the charge of manslaughter in the Local Court. Four psychiatrists, included one instructed on behalf of the Crown, diagnosed the respondent as suffering a major depressive illness at the time.

HELD: Dismissing the Crown appeal,

(1) (per Dunford and Hoeben JJ) The Sentencing Judge had erred in not imposing a custodial sentence, but,
(2) In the exercise of the Court’s discretion, having regard to (a) the principle of double jeopardy, (b) the Crown’s failure to seek a custodial sentence at first instance, and (c) the respondent’s progress in rehabilitation in the meantime, the appeal would be dismissed,
(3) (per Barr J) There was no error on the part of the Sentencing Judge.
R v Allpass (1993) 72 A Crim R 561 applied
Everett v The Queen (1994) 181 CLR 295, R v Edwards (1996) 90 A Crim R 510, R v Troja (CCA – unreported – 6 July 1991), R v Li [2000] NSWSC 1088, R v Cooper [2001] NSWSC 769, R v Albury-Thompson (1998) 16 CRNZ 79 referred to

IN THE COURT OF
CRIMINAL APPEAL

2004/1859
DUNFORD J
BARR J
HOEBEN J
FRIDAY 5 NOVEMBER 2004

REGINA v DANIELLA DAWES

Judgment

DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent by his Honour Judge Ellis in the District Court at Parramatta following her plea of guilty to the manslaughter of her 10 year old autistic son, Jason Taylor Dawes. The basis of the plea was pursuant to s 23A of the Crimes Act 1900 on the ground of substantial impairment of her capacity by reason of an abnormality of mind arising from an underlying condition, namely a major depressive illness.

The respondent was initially charged with the murder of her son on 4 August 2003, but pleaded guilty to manslaughter on 5 March 2004 when such plea was first offered by the Crown. On 2 June 2004, she was sentenced to a five year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (the Act) on the following conditions:

Appear before the Court if called upon to do so at any time;
Be of good behaviour;
Advise the Clerk of the Court at Parramatta of any change of residential address;
Accept the supervision of and obey all directions of the Probation and Parole Service during the term of the bond, especially in relation to treatment and counselling for her depressive illness at the discretion of the Probation and Parole Service;
Obtain regular psychiatric review of her depressive illness at the discretion and direction of the Probation and Parole Service;
Report to the Probation and Parole Service, Blacktown within 48 hours;
The Court to be informed of any breach at the earliest convenience.

The Director of Public Prosecution’s Notice of Appeal, dated 25 June 2004 was served on the respondent on 27 June 2004.
Before proceeding any further, it is appropriate to set out the principles and constraints which govern sentence appeals to this Court, particularly Crown appeals. They are conveniently summarised in R v Allpass (1993) 72 A Crim R 561 at 562-3 as follows (omitting the authorities cited):

A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply on the basis that the members of that court would have exercised their discretion differently from the judge at first instance.
Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals “should be a rarity”. One reason for this is the element of double jeopardy that is involved in such appeals. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice….
If a Crown appeal against sentence is successful and the appellate court re-sentences the respondent it does so in the light of all the facts and circumstances as at the time of re-sentencing. Events which have occurred after the original sentencing may be relevant.
Where in response to a Crown appeal, the Court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.
Jason was born on 2 September 1992, the younger of two children of the respondent and her husband, Craig Dawes, and was almost 11 years old at the time of his death. Their other child, a daughter, was born on 28 April 1990 and was accordingly aged 13 at the time of Jason’s death. At the time of Jason’s birth, his parents were conducting a take-away food store at Ballina and working the long hours which such a business entailed.
Jason’s autism was diagnosed in March 1994 when he was 18 months old. His parents were advised that he was in need of early intervention but, despite their best endeavours, they were unable to gain access to the appropriate unit near where they were living in Ballina at the time, and their son went for some years without appropriate intervention. When Jason was about 6 years old, they were advised by a specialist in Brisbane that his progress had been jeopardised by the lateness of the intervention.
About this time, and on one view as a result of this information, the respondent’s husband suffered a nervous breakdown, for a period of about two years he was unable to work and the respondent “carried the family for all of that time”.
Jason was described as profoundly handicapped and was suffering, inter alia, from the following:
(a) Severe communication disorder with functional language comprehension around the three-year-old level;
(b) Global development delay assessed as functioning in the moderate to severe range of intellectual disability;
(c) Severe expressive language disorder and severe speech output disorder consistent with oral dyspraxia/aphasia (speechlessness) and;
(d) Motor planning and sequence disorder consistent with motor dyspraxia, being a disturbance in the ability to carry out skilled voluntary movements.
The practical reality was that the care in terms of daily responsibility to feed, toilet, bathe, educate, entertain and love Jason fell to his mother and the learned sentencing judge found that this was an unrelenting, tiring, frustrating and never-ending task that very few people have ever experienced or are even capable of fully comprehending.

Eventually, in July 1999, Jason, then aged almost 7 years, started part-time at Holy Family Catholic Primary School in Ballina and from February 2000 he attended school for a full day each week. As he became more comfortable in the school, attempts were made to integrate him into other classes such as maths and language, and he demonstrated a number of splinter skills during this time, but as he became stronger, he developed the habit of grabbing teachers by the throat or fingers and bending their fingers backwards.
In February 2001, aged 8 years, he was enrolled as a full-time student in the school and showed further improvement, but still required continual maintenance at a very high level. He began to sign and learned his first words during this period, but outside the school environment, he was vastly different; he was constantly on the go and very difficult to manage.
In September 2001, the family sold their property in Ballina and moved to Kings Langley in the hope that in the larger city and with family support close by, they would be able to obtain more support. They did not obtain a good price for their property on the North Coast and were obliged to rent. Jason was then enrolled in a mainstream school where he had the benefit of a number of school aides. The school noted his inability to speak, making loud noises when frustrated, inability to follow regular class programmes, obstinate behaviour, a liking for singing, an intolerance for loud noise and occasional completion of tasks set at his level of development. At times he deliberately bent the fingers of teacher’s aides and his teachers when not wishing to comply with instructions. During the course in 2002, his violent behaviour greatly diminished after appropriate behaviours were reinforced.
In November 2001, both the respondent and her husband came under the care of Dr Lin, a general practitioner and each was treated for depression. The respondent continued seeing Dr Lin in March, June and July 2002. On 29 November 2002, the family moved to fresh rented premises at 6 Dunks Place, Kings Langley and on 24 December 2002, which was the respondent’s birthday, her father was diagnosed with a brain tumour and hospitalised.
In the meantime and for a number of years, there had been problems in the respondent’s marriage due her husband’s physical and verbal abuse, excessive use of alcohol and gambling, and on 5 January 2003, the respondent told him to leave the family home following an argument and domestic violence, and shortly thereafter she began seeing a domestic violence counsellor.

On 11 January 2003, her husband telephoned Lifeline threatening suicide, police were called and he received counselling from the Bungarribee Crisis Team at the Blacktown Hospital where he was confined for three days. Subsequently, the respondent’s husband visited the house regularly to see the children. At the beginning of February 2003, Jason was transferred from Kings Langley Primary School to Caddie’s Creek School, Glenwood because the teachers at his former school were unable to provide what he needed and the latter had a support unit for children with Autism.
About Easter 2003, the respondent’s husband returned to the family home to assist with the care of Jason although the marriage had not been reconciled, and then in May 2003, she learned that her stepfather had been indecently assaulting their daughter. The respondent had said that she loved her stepfather more than her own father and it was devastating for her to learn what he had done to her daughter. The matter was reported to police and subsequently an apprehended domestic violence order was obtained. She sought counselling for the daughter, but again was forced to wait a long time for an appointment. Her problem was compounded by the fact that her mother continued to live with her stepfather and as a result, the respondent felt a further sense of rejection and lack of support. According to her husband, it was from this event that the respondent deteriorated to the point where, as he said, she “became dead inside”. Then on 28 July, the daughter self-harmed.
Meanwhile, on 12 June 2003, the respondent’s father died and there were disputes with her stepmother in relation to his burial and his estate. About this time her grandmother was taken to hospital seriously ill, and not expected to live, although in fact she subsequently recovered. Then on 27 July 2003 shortly before Jason’s death, there was a heated and violent argument between the respondent and her husband, and in the week preceding Jason’s death, she and her husband had several discussions about Jason’s future concerning how he and they would cope with the onset of puberty.
She was at the time, receiving treatment for depression and was taking Deptogran 25 and a supplement named “30 plus” together with other combinations prescribed by a local massage therapist and was receiving vitamin B injections. It appears that during that time, her depression deepened, and in the month prior to Jason’s death, she had lost almost 10kgs in weight. She was also working 3 days (about 15 hours) a week and her employer had some months previously had occasion to speak to her about the quality of her work.
On 4 August 2003 after rising at 5:10am, the respondent helped her daughter to prepare for school. She discussed with her husband their continuing difficulties with Jason and the bleak future they had with him. At about 8:30am after her husband and daughter had left for work and school respectively, she got Jason’s clothes ready for school, took a shower and then attempted to dress Jason for school, but he would not cooperate and ran off to the rumpus room. The respondent followed him and there held his hand, placed her hand over his mouth and nose and held him until he ceased struggling, resulting in his death. She then picked him up and took him to the bed where she laid him down.
She telephoned her place of work and reported that she would not be in due to sickness, left money and bank account withdrawal slips and written authorities on the table so that her bank funds would be available for her husband and daughter and then went to the bathroom, took a razor and severely lacerated her wrists. When the bleeding stopped, she cut the wounds again to restore the flow of blood. When found shortly afterwards by her mother, she was near death and when paramedics attended, they were unable to register her blood pressure. She was taken to Blacktown Hospital and only survived because blood transfusions restored her blood level and blood pressure. She had full thickness transverse lacerations to her right wrist and three full thickness transverse laceration to her left wrist, exposing tendons.
After being found in the shower at her home, she was spoken to by police first attending the scene, and whilst obviously suffering the effects the attempt on her life, expressed her wish not to survive with the phrase, “I don’t want to get warm”.
She told Professor Greenberg, psychiatrist:
“I don’t know why it happened, whatever happened I had no control. My soul had left my body. I was just watching through my eyes. It wasn’t me. I knew it was me not having control over myself, it was like being on autopilot. I wish I had my boy back. I love him so much it’s not right I should be here. I should be with him. My children mean the world to me. I didn’t do it because I didn’t want Jason, I didn’t hate the trauma he caused. It wasn’t about Jason. I never wanted that morning to end my life. It’s never that I hate Jason or his disability. I loved him the way he was. It just happened. I never had the experience of loss of control, I never experienced that before, I snapped”.
She was interviewed twice by police later that day and made full and frank admissions, and pleaded guilty in the Local Court as soon as she was offered the charge of manslaughter. She has expressed remorse and contrition to the police, to all the psychiatrists and to Ms Powers of the Probation and Parole Service who prepared the Pre-Sentence Report, and his Honour was satisfied that her remorse and contrition were genuine.
Professor Greenberg saw the respondent on four occasions and had access to other reports. He expressed the view that at the time of Jason’s death, the respondent was labouring under such intensive and overwhelming feelings of depression that her actions were substantially impaired and she was deprived the capacity to understand the full significance of her actions and mentally control them. He considered that her mental abnormality arising from the underlying major depression substantially impaired her mental responsibility for the alleged act.
Dr Lin, the general practitioner who had been treating the respondent, confirmed that he treated her for ongoing depression which was getting worse despite medication whilst Dr Westmore, another psychiatrist who examined her on 13 August 2003, concluded that at the time of the offence she was suffering from a major depressive illness and that her mental condition deprived her of capacity to control her actions, and was also likely to have impaired her capacity to understand the wrongness of her actions.

Dr C L Wong, Consultant Psychiatrist, interviewed the respondent on 23 January 2004 on behalf of the Director of Public Prosecutions. He also concluded at the time she was suffering major depression, an abnormality of mind arising from a pre-existing mental condition, caused by the array of traumatic life events impacting on her personality traits which rendered her particularly susceptible to these events. He considered that as a result of her highly moralistic perspective, what took place around the time of the alleged killing, in particular what happened to the daughter, caused her more emotional revulsion than they would otherwise, and concluded that for some time, she had entertained fleeting and rather disorganised thoughts of killing Jason and then herself, but had had adequate control and had no difficulty in readily banishing such thoughts, but because of her severe depression, the adversities which came one after another in quick succession loomed much larger and appeared much more intractable and overwhelming. He was not convinced that her ability to judge the wrongfulness of her actions at the time of the killing was substantially impaired, but rather that she knew it was wrong, but had no control over it at the time.
Dr Wilcox, General and Forensic Psychiatrist, who subsequently treated the respondent, also concluded that the respondent was suffering from major depression when she took her son’s life.
This was not merely a case of a mother killing her severely disabled son, but of a mother suffering from major depression occasioned not only by the need to care for her son and the devotion she gave to that task, but overwhelmed by a number of other stressors all impacting on her at about the same time and in circumstances where her husband (the child’s father) was unable to provide the degree of support and assistance which she needed resulting in her spontaneously snapping and almost immediately being so overcome with remorse and regret that she made a genuine attempt to take her own life, and very nearly succeeded. As the learned sentencing judge said:
“This offender was required to educate, feed, toilet, bathe, entertain and love Jason. She loved and cared for (her daughter) and did not neglect her despite the constant demands of raising an autistic child. She constantly lived with the fact that her son had lost his best chance of acquiring greater life skills because of the failure of authorities to provide appropriate intervention during his early formative years. She carried the burden for her husband and supported him through his mental breakdown and general inability to cope with life and Jason in particular. She did all this in an environment of physical and emotional abuse from her husband. She worked outside the family home to help support the family. She assisted others with handicapped children.
Further, the offender lived through her grandmother’s illness, her father’s illness and subsequent death on 12 June 2003. She suffered considerable conflict with her stepmother both during her father’s illness and after his death. She suffered the anguish of losing her home in Ballina and being unable to afford to purchase a home in Sydney. Rather than gaining greater assistance from the authorities by coming to Sydney, she lost the small amount of respite care that she had managed to extract from the relevant government department in Ballina. She suffered the trauma of discovering that her stepfather, a man she loved more than her own father, was sexually abusing her daughter, causing her to self-harm and become promiscuous. She was told that she would have to wait a month for counselling for her daughter. She let her husband return to the family home only to find that his conduct during the social function in the week prior to Jason’s death confirmed her worst fears and left her feeling trapped in a relationship that she hated. She endured all of this while suffering a major depressive illness of her own”.
His Honour appears to have taken the view (ROS 25), acquiesced in by the Crown (T 39), that on the morning of 4 August, the respondent decided to take her own life but did not want to leave her son alive without her, and so killed him before killing herself (the planned suicide theory) rather than killing her son without any pre-meditation when her capacity was substantially impaired and then attempting to take her own life. The view accepted by his Honour appears to have come from statements made by the respondent months after Jason’s death to Ms Powers, who prepared the Pre-Sentence Report. It is inconsistent with what she told the police on the day of Jason’s death, what she told each of the psychiatrists shortly thereafter and what she has told her treating psychiatrist, Dr Wilcox. I am satisfied that it was not open to his Honour to accept the planned suicide theory and that he was in error in so doing.
In his Victim Impact Statement read to the District Court, the respondent’s husband referred to what a good mother she had been to Jason over the years, he asked for leniency for her and said that he could see no gain to the community or personal satisfaction in her being sent to prison. It would appear that his Honour took his attitude into account when sentencing the respondent, and in so far as he did so, he was in error, as the attitude of the victim: R v Palu (2002) 134 A Crim R 174 at [37], or in the case of homicide, the victim’s family: R v Previtera (1997) 94 A Crim R 76, is not relevant to the proper exercise of the sentencing discretion for the reasons explained in those cases. For the same reasons, the apparent change of attitude of the respondent’s husband is not a matter which this Court can take into account in considering the appeal: see also R v Newman [2004] NSWCCA 102 at [79] to [86] and cases there cited.
Manslaughter, whatever form it takes, constitutes unlawful homicide. It is always a most serious offence as it involved the taking of another human life and it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. All human life is to be protected including that of the disabled, the handicapped, the criminal, the derelict and the friendless.
In R v Edwards (1996) 90 A Crim R 510 at 517, Gleeson CJ repeated what this Court had said in R v McDonald (12 December 1995) as follows:
“Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.
Similarly in R v Troja (CCA – unreported – 6 July 1991) Kirby P observed:
“The starting point is a clear statement that objectively the offence (i.e. manslaughter) is one of the most serious that our community knows….Homicide is properly regarded in any civilised community, including ours, as a most serious crime….So much is incontrovertible….But it should be stated at the beginning of these reasons. Otherwise, there is a risk that the Court may so concentrate on the predicament of the applicant, on her explanation of her offence and her subjective circumstances, as to forget the important part which the law must play in upholding the protection of human life and in punishing those who take it”.
When the basis of a finding of manslaughter is diminished responsibility (now substantial impairment), pursuant to s 23A of the Crimes Act what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and voluntary act, performed with intent to kill or cause grievous bodily harm, or with reckless indifferent to human life. The abnormality of mind diminishes the offender’s responsibility for his or her act but it does not negate such responsibility.

A similar approach has been taken overseas. In R v Albury-Thompson (1998) 16 CRNZ 79, the appellant had been found guilty of the manslaughter of her autistic 17 year old daughter and had been sentenced to imprisonment for four years. On appeal by the offender, the New Zealand Court of Appeal reduced the sentence to one of 18 months saying:
“Compassion and other matters of mitigation aside, the strongest remaining factor to which proper weight must be given is maintaining the value the community places on human life….However, while agreeing with the judge that the sentence had to contain a strong message of concern to protect the particular community value, the unusual nature of the case has brought us to the conclusion that that end could be achieved by a lesser term than four years”.
Counsel have only been able to find 2 comparatively similar cases in this State. In R v Li [2000] NSWSC 1088, Greg James J granted the offender a bond under s 9 of the Act for the manslaughter of her young child at a time when she was gravely affected by depression and in R v Cooper [2001] NSWSC 769, Simpson J granted a similar bond for the infanticide of the offender’s daughter aged seven months. It is not necessary to express any view on whether this Court considers the sentences in those cases were appropriate but they are, in my view, both distinguishable from the present.
In Li, the offender was suffering from endogenous depression, had at all times been a caring and devoted mother and killed her child whilst so severely depressed as to verge upon being insane. She did so because it was her intent to commit suicide and she did not want to leave the child behind when she herself died. As explained earlier in these Reasons, I am satisfied this was not the situation in the present case.
Cooper on the other hand, was a case of infanticide rather than manslaughter, which her Honour noted was a form of homicide having particular characteristics and a particular genesis which justified in an appropriate case, a different approach to sentencing. Nevertheless, her Honour did observe:
“The loss of human life is something to be treated with utmost gravity. Where a life lost is that of a baby, completely defenceless, and at the hand of her mother, from whom she could ordinarily expect nurture and care, the obligation on the courts to signify its respect for the sanctity of life and to punish who take it is so much greater”.
It is an aggravating feature in this case that the victim was the respondent’s child who was so dependent on her and from whom he was entitled to and expect nurture, support and care: R v Vaughan (1991) 56 A Crim R 355, R v Ditfort (CCA – 1 March 1992), although the circumstances in those cases were quite different. See also the passage just quoted from Cooper. The offence of manslaughter carries a maximum penalty of imprisonment for 25 years: Crimes Act 1900 s 24, although the circumstances which may constitute the crime of manslaughter vary considerably and consequently so do the appropriate sentences.
In my opinion, his Honour failed to have sufficient regard to the courts’ responsibility to uphold the sanctity of human life and some of the important purposes of sentencing as set out in s 3A of the Act namely, denouncing the conduct of the offender, making the offender accountable for her actions and ensuring adequate punishment for the offence. It appears that his Honour allowed these factors to be outweighed by the strong subjective case presented on behalf of the respondent, and in so doing, fell into error. I am satisfied that notwithstanding her strong subjective case, her early plea, her contrition and remorse, this was a case where the objective seriousness of the offence required the imposition of a full time custodial, though not excessive, sentence, and the bond imposed was manifestly inadequate.
In considering whether in the particular circumstances of this case this Court should, in accordance with the principles set out in Allpass, above, intervene and re-sentence the respondent, it is necessary to have regard to three relevant factors, namely, the principle of double jeopardy, the Crown’s failure to press for a custodial sentence before the sentencing judge and the circumstances of the respondent as they exist at the time of the hearing of the appeal.
As to double jeopardy, there are two aspects of this principle in its application to Crown appeals; firstly, if the Court does intervene and re-sentence the respondent, it imposes a sentence at the lower or least end of the range it considers appropriate: R v MA [2004] NSWCCA 92 at [54]; and secondly, in appropriate cases it will lead the Court not to intervene, notwithstanding error in the original sentence. The principle of double jeopardy was explained in a passage adopted by the High Court in Everett v The Queen (1994) 181 CLR 295 at 302-3 as follows:
“The respondent of has faced the prospect of deprivation of…liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention, she must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bailey…by “double jeopardy”.
An issue closely related to double jeopardy, and often regarded as an application of it, is that it is only in exceptional cases that the court will uphold an appeal against a non-custodial sentence and sentence the offender to imprisonment, where the Crown has not pressed for a custodial sentence at first instance: Everett v The Queen, R v Allpass, R v Jermyn (1985) 2 NSWLR 194. On the other hand, the conduct of the Crown cannot fetter the discretion of the sentencer or of the appellate court: Malvaso v The Queen (1989) 168 CLR 227 at 233, R v Duroux (CCA – unreported – 11 April 1991), R v Hughesman (CCA – unreported – 5 April 1995). As the Court said in Allpass at 565:
“The Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course which was taken by the sentencing judge. The weight to be given to such a consideration depends on the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance”.
In the present case, the Crown, both in Written Submissions and orally (at T 40), did not press for a custodial sentence but conceded that a non-custodial sentence may be appropriate.

Finally, it is relevant to examine the present circumstances of the respondent. Since she was sentenced on 2 June last, she has obtained custody of her daughter and an apprehended domestic violence order against her husband. She and her daughter have moved from the Sydney area to the North Coast where the daughter is in Year 9 at a local high school and attending weekly appointments with a Victims of Crime Counsellor. She has also made friends locally and is involved in dancing classes and touch football.
The respondent has friends in the area who are supportive and, if not sentenced to a custodial sentence, intends to seek employment in the area, hopefully using her experience as a trained bookkeeper and computer operator. She also has regular contact with her domestic violence counsellor and her psychiatrist. It appears she is making good progress in her rehabilitation and from her depression and other traumas of the last few years and, notwithstanding the promptness with which the Crown appeal was instituted, to impose a custodial sentence at this stage would be disruptive of her rehabilitation and of her daughter’s well being.
Accordingly, I am satisfied that notwithstanding the errors disclosed in the sentence imposed by the sentencing judge, this Court should not now impose a custodial sentence. I have considered whether there are any other alternatives available which would, at least to a degree, express the Court’s denunciation of the respondent’s conduct and render her more accountable for her actions, but have concluded that there are not. The Pre-Sentence Report indicated that the respondent was not suitable for periodic detention, and in any event, we were informed from the Bar Table that it is not available for women in the North Coast area where the respondent now resides.
Imprisonment by way of home detention is not available in cases of manslaughter: s 76 of the Act, while suspended sentences are only available in respect of sentences for terms of not more than 2 years and they cannot be suspended for more than that period: s 12(1). As the original bond now stands, the respondent is subject to it for 5 years, and if she commits a breach of it, can be sentenced to full time imprisonment for up to 25 years, whereas if a suspended sentence were imposed she could only be subject to it for up to 2 years, and in the event of breach, could only be sentenced to imprisonment for up to 2 years.
For these reasons, notwithstanding the errors of the learned sentencing judge and the manifest inadequacy of the sentence, I am satisfied that the Court, in the exercise of its discretion, should not interfere with the sentence imposed in the District Court and that the Crown appeal should be dismissed.
BARR J: The substance of the Crown appeal was that the sentence itself demonstrated error, that any sentence less than one of full-time custody was outside the range of discretion of the sentencing judge.
Before coming to that submission, however, I should deal with two attacks on what were said to be his Honour’s findings of fact. The first attacked this passage from his Honour’s remarks on sentence -
The practical reality is that the care in terms of daily responsibility to feed, toilet, bathe, educate, entertain and love fell to his mother, this offender.
It was submitted that insofar as his Honour said that there was a daily responsibility to take the deceased to the toilet, his Honour fell into error. While that had been an onerous duty in preceding times, it was submitted, the evidence showed that the deceased had made progress. Reference was made to a statement of Ms Glenda Alekna, a teacher at the special school attended by the deceased. She said that during 2003 he had learned, among other things, the routine of going to the toilet when directed to. Counsel referred to a statement of Ms Linda Campton, a teacher’s aide, to the same effect. It was submitted that the evidence established that there had been a gradual improvement in the child’s abilities and an increase in confidence in his attainment of skills.
I would not read into the quoted portion of his Honour’s judgment any conclusion that the deceased was not making the progress contended for. His Honour said, and the fact was, that his toilet was the respondent’s sole daily responsibility. Furthermore, it was only a part of the overall responsibility of the respondent. The submission should be rejected.
The next submission attacked what was asserted to be his Honour’s finding that the respondent had decided to commit suicide and had mercifully killed the deceased before setting out to do so because she believed that he would have no quality of life without her.
That submission picked up a submission made by the Crown Prosecutor to the sentencing judge. These were the words used -
Was this an act of homicide with suicide to avoid consequences or was this an act of love whereby the offender sought to take her own life and saw no future for her son in the world that she was leaving behind?
In closing the case to the judge, the Crown Prosecutor referred to the tension between the need to protect the victims of crime and to give effect to an exceptionally strong subjective case. Counsel said this -
Within the task of resolving that tension it would seem to the Crown that there are two possibilities. 1. The offender has simply taken the life of this little boy because he was too much of a burden and then, realising the enormity of her act, has chosen to take her own life. That would be the more heinous approach or the more heinous view of the facts surrounding this death. The alternative is that the offender has reached that point where she has decided to take her own life but, being aware of, in her perception, in her mind, being aware of the difficulties to be faced by Jason, by Jason’s sister and by her husband, she took him with her or intended to take him with her but, fortuitously, at a point where her own life was almost lost, she was discovered and saved.
The Crown, I would acknowledge, is not in a position to establish beyond reasonable doubt the first of those alternatives. The evidence is perfectly consistent with the lesser of the two, as I call it, and I would have to acknowledge that on the evidence that is before the Court the Crown could not, in all conscience, argue that it is sufficient to justify the view that this offender killed her son and then sought to avoid the consequences of that act.

It seems to me that the two proffered solutions were not mutually exclusive. The respondent might have had both reasons for wanting to kill the deceased and she might have had both reasons for wanting to kill herself.
The police first interviewed the respondent at 4:25pm on the day that she killed the deceased and came so close to killing herself. She was in bed in hospital. This was part of an answer she gave to the investigating police officers -
A18 …Jason wouldn’t get up. It went through my mind how difficult it is with Jason. He got up, I got him out of bed, and he ran down the stairs. And I just thought, this is so difficult. It’s difficult on everybody. Me, Craig and (her daughter). Jason’s the one who’s only going to get more difficult so I held his hands and I covered his mouth.
Q 19 It’s O.K.
A And um, he struggled and I couldn’t do it anymore. It’s been so hard. Then, when, he stopped struggling. I picked him up and I lay with him on his bed then I got a razor from the bathroom because I just wanted to be a good mum. Then I sat in the shower and I cut my wrists. And as the bleeding would stop I cut some more.
The interview did not last long, but at 7:55pm on the same evening a second interview began. During the course of it the respondent gave a number of explanations, including these -
A 261 And he got up and he wouldn’t let me dress him and he ran down stairs and he wouldn’t come back up and that’s when it just got overwhelming and I felt I can’t keep doing this anymore.
…
A 264 So I held his nose and his, covered his mouth.
…
A 266 With two hands.
…
A 292 …Realised, realised I wasn’t this perfect mum anymore and I couldn’t live with that.
…
Q 306 …Can you tell me why, why you suffocated Jason, why you chose to suffocate him?
A Life is so difficult.
…
A 310 If I tried to end my life I couldn’t possibly leave Jason behind because it would be so hard for Craig ‘cause Jase and I, a tissue please?
Q 311 A tissue, yes.
A Jase is like a mummy’s boy.
…
Q 328 Yes. When you first woke this morning did you have thoughts of ending Jason’s life when you first woke up?
A No.
…
Q 342 Can you tell us what happened when you were in the shower?
A I had a razor and I cut my wrists ‘cause I, I knew that what, what I’d done was overwhelmingly wrong but I don’t know.
Q 343 So you cut your wrists because you knew what you had done was overwhelmingly wrong?
A Yeah, well partly and I’ve just been feeling so depressed that ---
…
Q 357 O.K. Now, Daniela, we were talking about how you were feeling prior, when you went to the, to the bathroom was it your intention to slash your wrist?
A Yes it was. I was, it was something I guess that I couldn’t live with. It wasn’t me. It wasn’t ---
Q 358 So because of what you had done to, to Jason you wanted to take your own life, is that right?
A Yeah, I guess so.
It appears that from the beginning, and not surprisingly in view of her mental state, that the respondent was giving more than one reason for acting as she had. That continued throughout her later interviews with psychiatrists and the Probation and Parole officer, Ms Powers.
In his remarks on sentence his Honour reproduced part of an explanation the respondent had given to Dr Greenberg, as follows - -
I don’t know why it happened, whatever happened I had no control. My soul had left my body. I was just watching through my eyes. It wasn’t me. I knew it was me not having control over myself, it was like being on autopilot. I wish I had my boy back. I love him so much. It’s not right I should be here. I should be with him. My children mean the world to me. I didn’t do it because I didn’t want Jason, I didn’t hate the trauma he caused. It wasn’t about Jason. I never wanted that morning to end my life. It’s never that I hated Jason or his disability. I loved him the way he was. It just happened. I never had the experience of loss of control, I never experienced that before, I just snapped.
His Honour commented extensively upon the evidence and report of Ms Powers, including her report that the respondent had told her that she knew she could not leave Jason behind, that he would not have coped without her and that he would not have understood where she was. His Honour referred to the submissions of the Crown Prosecutor and continued -
It is the opinion of the Court that the lives of the offender and her son were so intertwined in the mind of the offender, that a decision to end one was a decision to end both. The offender appears to have reached a point where she could see no hope for herself or Jason, and that the only solution was to end their lives.
His Honour summarised the several stressors bearing upon the respondent and continued -
There is no doubt that all of these significant stressors compounded to the point where she began to shut down emotionally. By the time of Jason’s death and her suicide attempt, the offender was acting on autopilot with little real appreciation of what she was doing, and no control over it in any event. Given her mental illness and these relentless and seemingly unending stressors, it is little wonder this offender was no longer able to cope on the morning of 4 August 2003. The offender having reached her nadir seemingly decided to end her own life and that of her “mummy’s boy”. She had had enough and could take no more.
In a long and detailed judgment his Honour nowhere referred to the choice he had been invited to make. I doubt whether his Honour concluded that, and only that, the respondent had tried to take her own life and had mercifully killed the deceased in anticipation in order to deliver him from a life without her. Even if he did, there was evidence to support that finding, rendering it proof from attack on appeal. The attack on his Honour’s conclusion should be rejected.
I come now to the substantial part of the Crown appeal. I have had the benefit of reading in draft the judgment of Dunford J and gratefully adopt his Honour’s summary of the facts, particularly those which explain the several stressors bearing upon the respondent when she killed the deceased.
So variable is the crime of manslaughter, both in its legal formulation and in the range of culpability that it contemplates, that the identification of the available range of sentence in any individual case is notoriously difficult. In R v Blacklidge Court of Criminal Appeal, 12 December 1995 unreported Gleeson CJ, with whom the other members of the Court agreed, said-
The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
Counsel drew the attention of his Honour and of this Court to sentences imposed in other cases which might to some degree be like this case. The cases of Albury-Thompson, Li and Cooper were canvassed. They are summarised in the judgment of Dunford J and there is no need for me to repeat the facts or the results.
I do not wish to be understood as stating that it is inappropriate for a Court at first instance or on appeal ever to look at sentences imposed in other cases for the purpose of ascertaining what an appropriate sentence might be or whether a sentence under challenge is inside or outside the proper range of sentencing discretion. There is a danger in doing so, however, because it might be suggested that the facts of the case under appeal and those of a case cited for comparison are so alike that the sentences, too, should have been alike. In R v Morgan (1997) 78 A Crim R 368, Hunt CJ at CL said this at 371 -
It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411:
“the reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.”
The statement of Hunt CJ at CL in R v Morgan is of general application but is particularly pertinent to manslaughter sentences for the reasons explained by Gleeson CJ in Blacklidge. In R v Schelberger Court of Criminal Appeal, 2 June 1988, unreported Yeldham J said this in delivering the judgment of the Court-
We have been referred to a number of other cases in which this Court has expressed opinions upon the adequacy or otherwise of sentences fixed by trial judges in varying cases of manslaughter. Speaking for myself, I find little assistance from decisions in other cases. The crime of manslaughter is one which has so many facets and which, in its nature, is so wide and extensive that little, if any, assistance is so gained from a consideration of what, on other occasions and in other circumstances and on another accused person, was a proper sentence to impose.
I do not find the cited cases of any assistance in determining the limits of his Honour’s sentencing discretion. There is no rule that the intentional killing of a child must always attract a custodial sentence. Each case must be judged on its peculiar facts.

I find it almost impossible to comprehend the combined effect on the respondent of the waves of misfortune which had swept over her. For her, life was almost unbelievably cruel. This is how the sentencing judge put it -
This offender was required to educate, feel, toilet, bathe, entertain and love Jason. She loved and cared for (her daughter) and did not neglect her despite the constant demands of raising an autistic child. She constantly lived with the fact that her son had lost his best chance of acquiring later life skills because of the failure of authorities to provide appropriate intervention during his early formative years. She carried the burden for her husband and supported him through his mental breakdown and general inability to cope with his life and Jason in particular. She did all this in an environment of physical and emotional abuse from her husband. She worked outside the family home to help support the family. She assisted other with handicapped children.
Further, the offender lived through her grandmother’s illness, her father’s illness and subsequent death on 12 June 2003. She suffered considerable conflict with her stepmother both during her father’s illness and after his death. She suffered the anguish of losing her home in Ballina and being unable to afford to purchase a home in Sydney. Rather than gaining assistance from the authorities by coming to Sydney, she lost the small amount of respite care that she had managed to extract from the relevant Government Department in Ballina. She suffered the trauma of discovering that her stepfather, a man she loved more than her own father, was sexually abusing her daughter, causing her to self-harm and become promiscuous. She was told that she would have to wait a month for counselling for her daughter. She let her husband return to the family home only to find that his conduct during a social function in the week prior to Jason’s death, confirmed her worst fears and left her feeling trapped in a relationship that she hated. She endured all this while suffering a major depressive illness of her own.
The three consulting psychiatrists and the treating psychiatrist agreed that when she killed the deceased the respondent was suffering from a mental illness. All agreed that her capacity to understand events or to judge whether her actions were right or wrong or to control herself were substantially impaired by an abnormality of mind arising from that condition and that the impairment was so substantial as to warrant her liability for murder being reduced to manslaughter. Dr Westmore would have allowed her the defence of not guilty on the ground of mental illness. Her mental processes were badly affected by all the factors bearing upon her, and that was something his Honour was bound to give effect to, particularly when considering whether to impose a sentence which strongly denounced the offence or which might deter others from offending.
The Crown was represented by a Deputy Senior Crown Prosecutor who submitted that it would be appropriate for his Honour to consider sentencing alternatives less than of full-time custody. I think that the Crown Prosecutor was entitled in this extraordinary case to make that submission. I think that his Honour was correct in concluding that the circumstances of the offence were so exceptional as to justify the imposition of a non-custodial sentence. I think that his Honour was correct in concluding that it was within his discretion to deal with the respondent as he did.
In my opinion the appeal should be dismissed.
HOEBEN J: I agree with Dunford J.
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LAST UPDATED: 05/11/2004

[2004] NSWCCA 363

5 November 2004