R v Eckersley

[2021] NSWSC 562

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v Eckersley [2021] NSWSC 562

Hearing dates:

6-29 April 2021, 30 April 2021, and written submissions

Date of orders:

20 May 2021

Decision date:

20 May 2021

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), you are placed on a Community Correction Order for a period of 2 years commencing today, 20 May 2021.

(2) Pursuant to s 88(1) of the Crimes (Sentencing Procedure) Act 1999, the following standard conditions apply for the duration of the order:

(a)   you must not commit any offence; and

(b)   you must appear before the court if called upon to do so at any time during the term of the Community Correction Order.

(3) Pursuant to s 89(1) of the Crimes (Sentencing Procedure) Act 1999, I impose the following additional condition which applies for the duration of the order, namely a treatment condition requiring you to receive treatment for your mental health problems as outlined in the report of Ms Emily Kwok dated 8 February 2021.

(4)   I direct that you not leave the Court precinct prior to signing this Order at the Registry.

(5)   I direct that you notify the Supreme Court Registry should you change your address during the period of this Order.

Catchwords:

CRIME – sentencing – verdict of manslaughter following trial – offender administered pentobarbitone to her 92 year old mother – jury verdict consistent with manslaughter by unlawful and dangerous act or substantial impairment – found offender intended to kill – offender substantially impaired – mentally ill offender – whether s 5(1) of Crimes (Sentencing Procedure) Act 1999 satisfied – non custodial sentence imposed

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Barbieri v R [2016] NSWCCA 295

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Justins v Regina [2010] NSWCCA 242

Le v Regina [2019] NSWCCA 181

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep)

R v Blake Davis [2021] NSWSC 235

R v Dowdle [2018] NSWSC 240

R v Israil [2002] NSWCCA 255

R v Jans [2000] NSWSC 525

R v Justins [2008] NSWSC 1194

R v Mathers [2011] NSWSC 339

R v MB [2017] NSWSC 619

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Quinn (No 2) [2016] NSWSC 1244

R v Shirley Justins [2011] NSWSC 568

R v Sutton [2007] NSWSC 295

R v Yousef (District Court, 8 November 2019, unrep)

Category:

Sentence

Parties:

Regina (Crown)
Barbara Eckersley (Offender)

Representation:

Counsel:
P Kerr (Crown)
K Ginges (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
McKenna Taylor (Offender)

File Number(s):

2018/244226

Judgment

1. On 7 April 2021, the offender, Barbara Eckersley, was arraigned before a jury panel on an indictment charging her with the murder of her mother, Mary White, on 5 August 2018 at Bundanoon. Mrs Eckersley pleaded not guilty. The trial ensued. After a number of days of deliberation, on 29 April 2021, the jury returned a verdict of not guilty to murder but guilty to manslaughter. The Court heard submissions on sentence on 30 April 2021 and written submissions were filed thereafter.

2. The maximum penalty for the offence of manslaughter is imprisonment for 25 years (Crimes Act 1900 (NSW) s 24). There is no standard non-parole period prescribed under s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Procedure Act”) for manslaughter.

3. Mrs Eckersley killed her mother at her nursing home by mixing the barbiturate, pentobarbitone, into her soup and spoon feeding it to her. The killing of a vulnerable person in those circumstances is necessarily a serious crime. It was common ground that Mrs Eckersley is of otherwise impeccable character and that she loved and cared for her mother. As I will explain, she administered the drug while suffering from a severe depressive disorder and when her capacity to understand events and know right from wrong was substantially impaired. The Crown Prosecutor described Mrs Eckersley’s conduct as an act of love and she described it as an act of despair. All accepted that her distress arose from witnessing her mother’s suffering over many years. Despite a factual context that cries out for flexibility in terms of sentencing options, in this case, the legislative regime only provides for a choice between a Community Correction Order and full-time imprisonment. The focus of this judgment is directed to which of those sentencing outcomes should be imposed.

Background

4. The following description of the background to the offence is taken from the evidence adduced at the trial and is consistent with the jury’s verdict. To the extent I make findings of fact adverse to Mrs Eckersley then I am satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to Mrs Eckersley then I am satisfied of the relevant fact on the balance of probabilities (see R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

5. The deceased, Mary White, was born in February 1926. [1] At the time of her death in August 2018 she was 92 years old. [2] Her husband died in 1981. They had five children, including Mrs Eckersley who was born in 1951. Mrs Eckersley described her mother as a “very loving mother” as well as “very charming, charismatic, very determined and often very judgmental”. [3] Mary White was also highly intelligent and resourceful. From the time of her husband’s death, she commenced researching and writing about paleobotany, that being the study of fossilised plants. [4] Her work, including her publications, was highly regarded both in Australia and overseas. [5] She was awarded four honorary doctorates and membership of the Order of Australia in recognition of her scholarship. [6]

   1. T 820.46.

   2. T 496.

   3. T 797.5.

   4. T 809.

   5. T 810.

   6. T 811.

6. Mrs Eckersley’s life has many similarities with her mother. At the time of the offence, she was just under 67 years of age. After completing an undergraduate science degree with honours, she was awarded a PhD in 1979. Her area of specialty was reproductive physiology. By that time she had married. She then became, in her own words, a “stay at home mother for a long time”, looking after their children. [7] Her husband, Richard, worked with both the CSIRO and the Australian National University. He originally specialised in epidemiology and population health, but his interests extend to social commentary. One topic of many that he has studied was euthanasia.

   7. T 812.26.

7. Sometime during the period 1988 to 1998, Mrs Eckersley undertook volunteer work with the ACT Wildlife foundation. She helped with the rescue and rehabilitation of orphaned and injured animals. [8] In her evidence, she said that during the course of that work a veterinarian provided her with a “little bottle of emergency stuff”, which she also referred to as “green dream” [9] . This was later identified as pentobarbitone. Mrs Eckersley said it was used as a sedative on badly injured animals and, “not very often”, to euthanise them. [10]

   8. T 813.

   9. T 814.

   10. T 814.

8. From around 1998, Mrs Eckersley worked in various businesses and for a parliamentary committee. [11] In 2011, she and her husband moved to Bundanoon. In the meantime, in 2003, Mary White moved to the Port Macquarie area and commenced leasing motel‑like units on her property. In or around 2008 to 2009 she suffered a heart attack. [12] Mrs Eckersley assisted her mother during her recovery. She noticed that her mother “seemed confused” and her “memory wasn’t great”. [13]

   11. T 815.

   12. T 816.

   13. T 817.12.

9. In February 2014, Mary White moved into a “granny flat” at Mrs Eckersley’s home. Mrs Eckersley said she anticipated her mother would be relatively independent but instead found that she could not drive and needed assistance with everyday tasks. [14] In February 2015, Mary White, who was by then 89, commenced having “transient ischaemic attacks”, that is, mini-strokes. [15] She was also diagnosed with vascular dementia. [16] In her evidence, Mrs Eckersley described the distress her mother experienced from the self-realisation that her mind was slipping. [17] Mrs Eckersley said she was “on alert” for her mother “24 hours a day”. [18]

   14. T 818.

   15. T 818.41.

   16. T 63.9.

   17. T 818.

   18. T 819.9.

10. In November 2015, Mary White was placed at Warrigal Aged Care home in Bundanoon for some weeks of respite care (“Warrigal”). [19] In February 2016, she suffered a major stroke. [20] As a result, she was paralysed on one side and, according to Mr Eckersley, “virtually unable to speak”. [21] On or about 22 February 2016, she was admitted to Warrigal as a full-time resident. From the time Mrs White was admitted to Warrigal until around July 2017 she was under the care of her general practitioner, Dr Lane. After that time, she was under the care of Dr Rajendra. [22]

    19. T 819.30.

    20. T 820.33.

    21. T 63.21.

    22. T 219.

11. There was a substantial amount of evidence led at trial about Mary White’s medical condition and treatment while at Warrigal and Mrs Eckersley’s interaction with Warrigal staff. For the purposes of sentencing, it is only necessary to note the following.

12. First, I am satisfied that, during her time at Warrigal, Mrs White’s condition continued to deteriorate. By the time of her death, at least to outward appearances, her quality of life appeared very poor. She was paralysed down one side of her body and could not communicate verbally. She was spoon fed. At the trial, some evidence was given by Dr Rajendra that on 25 July 2018 Mrs White enjoyed a dinner of roast turkey, cake and mulled wine in the company of the leisure and entertainment officer. [23] In cross‑examination it emerged that Dr Rajendra gave this evidence after misreading the effect of entries in her medical notes that included a report about a function that was referable to all of the residents of the home. [24] I reject his evidence on this topic entirely.

    23. T 222.

    24. T 256 to T 259; Exhibit 5.

13. Second, the trial was not an inquiry into the appropriateness or otherwise of the level of care that Mrs White received at Warrigal. Nothing in this sentencing judgment should be taken as a criticism of the care that was provided. That said, it was also not in issue that Mrs Eckersley held and expressed to the staff at Warrigal genuine concerns about her mother’s condition and treatment.

14. Unless she was travelling for some reason, Mrs Eckersley attended on her mother every day, frequently to feed her dinner. As a result, she was able to view her mother’s condition and treatment. Mrs Eckersley repeatedly raised with Warrigal staff her concern about the level of agitation that she and her husband observed Mrs White experience over time and whether she was receiving sufficient medication to ensure that she was “settled”. This concern about her level of agitation was amply justified. At the trial, evidence was adduced of a phenomenon known as “sundowning” whereby dementia patients became more agitated in the late afternoon or early evening. Those periods coincided with Mrs Eckersley’s visits to see her mother. However, whether the appropriate medical response to the agitation was to administer Mrs White higher dosages of drugs was not an issue in the trial and not something I express any view upon.

15. The evidence concerning the deterioration in Mary White’s medical condition over the years and Mrs Eckersley’s concerns about her condition and treatment cut both ways in terms of the issues at the trial. On the one hand, it supported the Crown’s contention that Mrs Eckersley administered the pentobarbitone intending to end her mother’s life to alleviate her suffering. On the other hand, it supported Mrs Eckersley’s case to the extent she contended that her experiences in dealing with her mother’s condition and treatment contributed to her suffering a major depressive episode in July and August 2018.

16. Third, there was evidence that, at various times during 2016 to 2018, Mr Eckersley raised the topic of euthanasia in some of his discussions with Warrigal staff as well as with Dr Lane and Dr Rajendra in the presence of Mrs Eckersley. The most significant evidence was given by Dr Lane who said that, prior to the first case conference with Warrigal staff on 21 March 2016, his “impression” was that Mr Eckersley asked him in his wife’s presence “whether or not [he] was able to perform euthanasia”. [25] Dr Lane said that, as a consequence, he called the case conference. [26] Mr Eckersley denied that. [27] I am not satisfied that any conversation in substantially those terms occurred. There is no reference to it in the notes of the case conference that followed. [28]

    25. T 135.9; T 135.20; T 146.3.

    26. T 134.50.

    27. T 74.

    28. Exhibit A, p 670.

17. Otherwise, the balance of the evidence concerning the topic of euthanasia was to the effect that it was only raised by Mr Eckersley and he did so at various case conferences. There was a debate about whether he raised the topic of euthanasia as a matter of public interest generally or raised it in the context of something that, if euthanasia was legalised, might be warranted in the case of Mrs White. In her evidence, Mrs Eckersley denied that her husband ever mentioned the issue of euthanasia in relation to her mother. [29] I am not satisfied that any discussion on the topic of euthanasia with Warrigal staff in the presence of Mrs Eckersley ever went beyond the matter as a topic of general public interest.

    29. T 903.

18. The different perceptions about Mrs White’s condition and treatment between the staff at Warrigal and Mr and Mrs Eckersley reached their zenith at a case conference on 13 July 2018. During that conference, Dr Rajendra advised Mrs Eckersley in words to the effect that he “didn’t think … ‑ there wasn't much more we could do for Mary White”. [30] In her evidence, Mrs Eckersley recalled that she was also told “if you don't like it, you can move her to another facility”. [31] She said that this left her feeling “let down, belittled [and] dismissed”. [32] In the days following, she consulted with her siblings about moving her mother to a different facility. On 26 July 2018, she sent her siblings an email. In that email she stated that “I look in the mirror and see her” and that “[e]motionally it’s like watching myself dying slowly”. [33] Ultimately, it was agreed that Mrs White would be transferred to an aged care facility at Coffs Harbour near where her daughter Zoe lived.

    30. T 291.

    31. T 841.21.

    32. T 841.28.

    33. T 845.11; Ex A Tab 18.

August 2018

19. Mrs White was due to be transferred out of Warrigal on Tuesday 7 August 2018. On Friday 3 August 2018 Mrs Eckersley attended a case conference which discussed the move. [34]

    34. Ex A p 725.

20. At around 5.00pm on 4 August 2018, Mrs Eckersley arrived at Warrigal and fed her mother. [35] Mr Eckersley did not accompany her. As I will explain, there is an issue as to whether, at that time, she added a large (and unauthorised) dosage of the benzodiazepine, temazepam, to her mother’s food.

    35. Ex A, tab 1 at p 713.

21. On Sunday 5 August 2018, Mr and Mrs Eckersley signed in at Warrigal at 5.05pm. [36] They went to Mrs White’s room. Mrs Eckersley spoon-fed her mother her soup. As I will explain, Mrs Eckersley admitted that she poured a quantity of the “green dream” into the soup. Mr Eckersley was not aware that his wife had administered the green dream. He said that “quite quickly, Mary started coughing a little bit …her breath became sort of gurgling and she became very unresponsive, sort of floppy and Barb rushed off to get a nurse.” [37] One of the nurses recalled Mrs Eckersley coming to the nurse’s station asking for help at “5.30ish”. [38] Mrs Eckersley did not tell that nurse, or anyone else that evening, that she had put anything in her mother’s soup.

    36. Ex A, tab 1 at p 715.

    37. T 67.35.

    38. T 182.

22. At the trial, there was a significant amount of evidence about the course of the events from that time until Mrs White passed away. It suffices to state that at around 6.15pm Mrs White was given an injection of clonazepam. The experienced nurse who administered the drug concluded that Mrs White “was moving quickly into an end-of-life stage”. [39] At around 7.15pm, Mr and Mrs Eckersley left Warrigal to have their own meal but intended to return. [40] In his evidence, Mr Eckersley said that his mother‑in‑law “seemed” to be settled when they left. [41]

    39. T 316.43.

    40. T 186.

    41. T 68.33

23. Mr and Mrs Eckersley returned to Warrigal at around 9.00pm. [42] One of the nurses said that she met them at Mrs White’s room at around that time. She said that Mrs White “appeared to be okay and comfortable” but “still has the rattly ... the noisy ... breathing” [43] which is often a sign that a person is nearing end of life. The nurse then commenced the process of obtaining approval to administer end‑of‑life medication. While she was doing so, at around 9.30pm Mrs White passed away. [44]

    42. T 68; T 371.5.

    43. T 187.

    44. T 190.

24. Dr Rajendra learnt about Mrs White’s death the following day. He contacted the coroner’s office. [45] A police investigation was commenced. [46] On Tuesday 7 August 2018, Mr and Mrs Eckersley attended a police station. They were told there would be an autopsy. [47] They provided statements. [48] In her statement, Mrs Eckersley made no mention of administering any drug to her mother. [49]

    45. T 483.

    46. T 461.

    47. T 466 to T 467.

    48. T 462.

    49. T 467.

25. In his evidence, Mr Eckersley said that, at around 7.30am on Wednesday 8 August 2018, his wife was very distressed. She told him she had given her mother barbiturates that she obtained from working with injured wildlife. [50] Despite his advice that she seek legal advice, Mrs Eckersley insisted that they attend the police station. [51]

    50. T 70.

    51. T 71.1.

26. Soon after Mr and Mrs Eckersley attended Southern Highlands Police Station. Detective Senior Constable Walker was summoned to the foyer to meet them. Mrs Eckersley told him that “I helped my mother die” and “I put some barbiturates in her food”. [52] She was then arrested for her mother’s murder and cautioned. Mrs Eckersley’s electronically recorded interview with a suspected person (“ERISP”) commenced at 1.39pm that afternoon and concluded at around 3.20pm. [53] The salient parts of the ERISP are noted next. After the ERISP was completed, Mrs Eckersley was charged with her mother’s murder. She was initially refused bail but was granted bail in the Local Court on 10 August 2018.

    52. Exhibit G and Exhibit H.

    53. Exhibit K Q1.

27. On 10 August 2018, an experienced forensic pathologist, Dr Rebecca Irvine, performed an autopsy on Mrs White. This revealed that she suffered from a number of chronic and serious medical conditions including the effects of various strokes and myocardial infarctions. [54] She had a build-up of calcium in her arteries and “a possible focus of acute plaque haemorrhage or fibrin” in one section of a coronary artery. A report from a neuropathologist revealed a recent occlusive thrombus within the right vertebral artery.

    54. T 485 to T 486.

28. A blood sample was taken from Mrs White’s thigh. The report of the results revealed concentrations of various drugs including temazepam, clonazepam, midazolam, mirtazapine and paracetamol all in the non-toxic range.  The report also showed a concentration of .14mg/L of pentobarbitone. Initially, Dr Irvine reported that was in the non-toxic range but she later realised she had made a mistake and determined that it was in the toxic range. [55] Ultimately, she concluded that the ingestion of that drug was the cause of Mrs White’s death. At the trial, two pharmacologists and a forensic pathologist with expertise in pharmacology all described that dosage as being in the low end of the lethal range.

    55. T 495.30.

The Offender’s ERISP

29. During the ERISP, Mrs Eckersley recounted the history of her mother’s deterioration and the decision to transfer her out of Warrigal. Early in the ERISP, Mrs Eckersley stated that she administered the two drugs to her mother, ie, the green dream and temazepam, at the same time. [56] Later, Mrs Eckersley said that “shortly before” she left her home on the afternoon of 5 August 2018 to travel to Warrigal, she went to a cupboard and withdrew about 8 to 10ml of the green dream from its container bottle using a syringe. [57] She said she also crushed about eight temazepam tablets in her kitchen using a mortar and pestle [58] which she then poured into a vial. Mrs Eckersley said that, when she arrived in her mother’s room, her mother was “very deeply, um, asleep or very unresponsive”, so she “shook her shoulder” and when the meal arrived, she sat her mother “upright and she was still out of it totally”. [59] Mrs Eckersley said she “emptied the stuff into the soup”. [60] She said she “stirred it a little bit and started feeding her”. [61]

    56. Exhibit K, A 32.

    57. Exhibit K, A 214 to A 230.

    58. Exhibit K, A 237.

    59. Exhibit K, A 266.

    60. Exhibit K, A 284.

    61. Exhibit K, A 295.

30. During the ERISP, Mrs Eckersley was asked about what she intended to happen when she administered the drugs to her mother. In one of her answers, she said “I just thought she’d go to sleep. And then we’d go home and if, if it had an effect on her she’d die peacefully in the night.” [62] Later when asked whether it was her “intention for her to go to sleep peacefully and then and then, uh, pass away”, Mrs Eckersley replied “I guess so”. [63]

    62. Exhibit K, A 315.

    63. Exhibit K, A 369.

31. At various times in the ERISP, Mrs Eckersley described the despair she felt during this period and referred to feeling “outside” of herself. Hence, at one point she was asked where the idea to administer the drug came from. She replied [64] that she “just felt desperate” and that she felt as though she was “abandoning” her mother. Mrs Eckersley said that she feared that throughout the journey to the aged care facility in Coffs Harbour and afterwards her mother would “probably continue to suffer to some extent because there just didn’t seem to be anything that anyone could do to make her comfortable … and not distressed”. Mrs Eckersley stated that when she located the pentobarbitone “it was like, it wasn’t me, like, I was outside myself”. [65]

    64. Exhibit K, A 221.

    65. Exhibit K, A 223.

The Offender’s Evidence

32. As noted, Mrs Eckersley gave evidence at her trial. She was firmly but fairly cross‑examined by the Crown Prosecutor. Parts of her evidence have already been referred to. However, it is necessary to describe her narrative of events on Saturday, 4 August and Sunday, 5 August 2018 because it involves a departure from what she stated in her ERISP in two significant respects. First, contrary to her ERISP, Mrs Eckersley’s evidence was that she administered the temazepam to her mother at the time of her evening meal on Saturday, 4 August 2018 and not on Sunday, 5 August 2018. [66] Second, Mrs Eckersley denied that, in administering the pentobarbitone, she intended to end her mother’s life. She said that she only intended to relieve her suffering. [67]

    66. T 849 to T 850.

    67. T869

33. In her evidence, Mrs Eckersley described being in a depersonalised state on the afternoon of 4 August 2018. Hence, she recalled “standing or looking down on myself” [68] and then crushing up a packet of temazepam tablets at home and pouring them into a vial. [69] She said that when she arrived at Warrigal her mother was “crying” and “distressed” and she stirred the temazepam powder into her mother’s dessert. [70] She said that by the time she left, her mother “wasn’t crying anymore”. [71] Mrs Eckersley explained that she only intended to administer half the temazepam but when she “tapped” the vial “it all shot out”. [72] Mrs Eckersley said that she only intended to give her mother half the temazepam because she “thought that that would be a reasonable amount, just to sedate her a little bit more for the night, and that I'd have some for tomorrow night if she was suffering”. [73] Despite giving her mother such a large dose she did not advise the staff of what she had done or telephone them that evening from her home to enquire about her mother’s condition. [74]

    68. T 849.6.

    69. T 850.23.

    70. T 851.

    71. T 851.53.

    72. T 851.3.

    73. T 851.8.

    74. T 852.45.

34. In her evidence, Mrs Eckersley said that she suffered a disturbing nightmare that evening and was in a similar depersonalised state the following day. She was asked how it was she took the green dream with her when she went back to Warrigal on Sunday afternoon. She said she felt “out‑of‑body, disconnected and confused ‑and while I was sitting there, I guess, the thought, you know, "What do I do if she's miserable tonight?" [75] She said she thought that there was something she could “sedate her slowly with”. [76] Mrs Eckersley said she attended Warrigal with her husband, taking with her the green dream and a bag for her mother’s impending trip that contained such items as nighties, wall hangings and her handbag. [77] She said that she left the bag at the base of her mother’s bed. Mrs Eckersley said that when she arrived, she said “hello” to her mother and “roused her a bit”. [78] Like in the ERISP, she did not describe her mother as being in distress or agitated at this time. She said that while she was being spoon‑fed her mother was “pretty unconscious of what was going on”. [79]

    75. T 854.18.

    76. T 854.34.

    77. T 855.43.

    78. T 855.25.

    79. T 901.45.

35. In the balance of her evidence, Mrs Eckersley described administering the green dream, calling the nurses and the timeline of her mother’s death in the way that has already been described. When asked why she did not tell the nurses about administering the green dream she said she had no recollection that she had done so. [80] As for the events on the days that followed, Mrs Eckersley said that she did not recall what she had done until the morning of 8 August 2018. [81] She said that during the ERISP she felt confused and that in answering her questions about whether she intended to end her mother’s life she was “trying to fill in the gaps”. [82]

    80. T 858.1.

    81. T 861.41.

    82. T 864.48.

36. In both her evidence‑in‑chief and in cross‑examination, Mrs Eckersley was asked why she administered these drugs to her mother. She said that “I wasn't thinking of ending her life and on the fourth and the fifth I just, while she was in my care I just wanted to relie[ve] her suffering.”

Causation and Intention

37. In putting its case on murder, the Crown expressly disclaimed any reliance on Mrs Eckersley possessing a reckless indifference to ending her mother’s life or that she may have only intended to inflict grievous bodily harm on her. Hence, the directions given to the jury in relation to murder required the jury to be satisfied beyond reasonable doubt that Mrs Eckersley had a specific intention to kill her mother. If the jury was satisfied of that element and causation, then before convicting her of murder they were required to address whether Mrs Eckersley established the partial defence of substantial impairment. If the jury was satisfied of causation, but not that Mrs Eckersley had an intention to kill, then they were required to consider whether she committed manslaughter by an unlawful and dangerous act. Otherwise, the jury was directed that, if they were not satisfied beyond reasonable doubt of causation, then Mrs Eckersley had to be acquitted.

38. Thus, the directions gave the jury two possible forms of manslaughter to consider, namely manslaughter by an unlawful and dangerous act and manslaughter following a finding of substantial impairment as provided for in s 23A of the Crimes Act. The jury was instructed that they did not have to be unanimous about the form of manslaughter, only that manslaughter was the appropriate verdict. Hence, the jury’s verdict is consistent with either form of manslaughter and it falls to me to make findings about her culpability consistent with the jury’s verdict. In that regard, there were three principal issues that arose at the trial, namely causation, intention to kill and substantial impairment.

39. In relation to causation, on behalf of Mrs Eckersley it was submitted to the jury that the observations made of Mrs White at around 5.30pm on Sunday 5 August 2018 could not have been a consequence of her ingesting the pentobarbitone as it did not act that quickly. It was contended that the Crown had not disproven the reasonable possibility that Mrs White’s death was a consequence of a stroke or heart attack and her ingestion of pentobarbitone was only coincidental and not causative or that it did not play a substantial or significant role in hastening her death. The jury’s verdict confirms that the jury was satisfied beyond reasonable doubt that the act of Mrs Eckersley in administering pentobarbitone was a substantial or significant cause of Mrs White’s death. In submissions on sentence, counsel for Mrs Eckersley, Mr Ginges, submitted that it was necessary for the Court to go further and determine, beyond the jury’s finding, the extent to which Mrs Eckersley’s actions contributed to Mrs White’s death. I do not agree. At least in this respect, an assessment of causation is essentially a binary decision and the jury was clearly unanimous in finding that the test of substantial or significant cause of death was satisfied beyond reasonable doubt. That is sufficient.

40. Mr Ginges also submitted that findings about the precise progression of medical events that led to Mrs White’s death were necessary in order to determine the level of suffering, if any, that she experienced. [83] Given Mrs White’s medical ailments and the fact that the nursing staff who attended on her were not aware that she had ingested pentobarbitone, it is not possible to determine whether that caused her to suffer in the form of experiencing pain, fear or discomfort.

    83. T 30/4/2021 p 17.21.

41. In relation to intention, it follows from the above that the jury’s verdict does not necessarily reflect a finding that Mrs Eckersley intended to kill her mother. In submissions on sentence, the Crown Prosecutor submitted that I should find beyond reasonable doubt that Mrs Eckersley had that intention when she administered temazepam to her mother on the evening of Saturday 4 August 2018 [84] and that continued to the following day when the green dream was administered.

    84. T 30/04/2021 p 1.45.

42. In his final address to the jury, the Crown Prosecutor submitted that “Barbara Eckersley intended to cause her mother's death on 5 August, she was at the end of her tether, she could not bear to see her mother continue as she perceived it, in pain and suffering.” [85] In support of that submission, the Crown Prosecutor relied on what Mrs Eckersley stated in her ERISP about her intentions and what could be inferred from her conduct in administering a dangerous dose of a dangerous drug to a 92-year-old woman with serious medical issues. The Crown Prosecutor also relied on Mrs Eckersley’s failure to make enquiries about what was a safe dosage of pentobarbitone and her failure to tell the medical staff what she had done as supporting the Crown case on intention.

    85. T 986.

43. In his submissions on sentence, Mr Ginges submitted that I should not be satisfied that his client intended to kill Mrs White (and that I should otherwise make findings consistent with the partial defence of substantial impairment). [86] Mr Ginges relied on his client’s evidence, which I have already summarised. He also relied on evidence from two psychiatrists called at the trial, Dr Adams and Dr Eagle, whose evidence was that the effect of her depressive condition on her decision making and memory were a reasonable explanation, or at least an explanation, for her failure to inform the medical staff on 5 August 2018, and the police on 7 August 2018, that she administered pentobarbitone to her mother. Based on their evidence it was also submitted that, during the ERISP, Mrs Eckersley was only projecting back as to what her state of mind was on 5 August 2018. [87]

    86. T 30/4/2021 p 12

    87. T 743.4 (Dr Adams); T 776.45 (Dr Eagle); “If it was due to her psychological state”; T 777 (Dr Eagle).

44. Mr Ginges also relied on a submission he made to the jury about aspects of his client’s conduct which were said to be inconsistent with her having an intention to end her mother’s life. Some of that conduct, such as purchasing items for her mother to take with her to the new nursing home, took place prior to the weekend of 4 and 5 August 2018. This can be put aside as there is no possible basis for concluding that Mrs Eckersley formed any intention to kill her mother prior to that weekend. However, Mr Ginges also relied on evidence that, even on that weekend, she was making plans for her mother’s transfer to Coffs Harbour and not her death. This included the fact that when she attended Warrigal on 5 August 2018 and gave her mother the green dream, she also brought with her some prepared nighties, wall hangings and a travel bag for her mother’s journey. Mr Ginges also relied on evidence given by her former solicitor who was told by Mrs Eckersley in a conference on 13 August 2018 that she did not intend to end her mother’s life. [88]

    88. T800.27 (Rowland)

45. One issue of some relevance to the resolution of this issue concerns whether Mrs Eckersley administered temazepam to her mother on the evening of Saturday, 4 August 2018 or Sunday, 5 August 2018. The evidence of the pharmacologists was to the effect that the level of temazepam recorded in Mrs White’s post mortem blood sample was inconsistent with her having absorbed eight crushed tablets on the Sunday evening and consistent with her having absorbed that amount or something similar on the Saturday evening. [89] However, they also stated that it was possible that it could have been administered by Mrs Eckersley on Sunday evening with only a small amount absorbed by the time of her death. [90]

    89. T 593; T 602.17.

    90. T 602; T 201.5; T 593.25.

46. A complicating factor is whether I need to be satisfied of the time when Mrs Eckersley administered the temazepam beyond reasonable doubt or only on the balance of probabilities. During the trial and on sentencing, the Crown Prosecutor appeared to embrace the suggestion that the temazepam was administered on Saturday night because that supported his contention that Mrs Eckersley’s intention to kill her mother was formed on that day. However, the Crown Prosecutor also submitted that, if it was administered on the Sunday night with the pentobarbitone, then it destroyed any suggestion that the latter was administered for therapeutic reasons. Mr Ginges urged an adoption of Mrs Eckersley’s evidence that she administered it on Saturday night because that would both support her credit and undermine the incriminating answers she gave in the ERISP. Ultimately, I record that I am satisfied on the balance of probabilities that Mrs Eckersley administered the temazepam on the evening of Saturday 4 August 2018, but I am not satisfied beyond reasonable doubt that she formed any intention to kill her mother on that day

47. This leaves Sunday 5 August 2018. Regrettably, I record that I am satisfied beyond reasonable doubt that Mrs Eckersley administered the green dream to her mother on that day with the specific intention of killing her. As I will explain, Mrs Eckersley’s decision-making faculties were substantially impaired at that time by her depressive state. However, they were not so impaired that she could somehow conceive of the idea of merely sedating her 92-year-old mother with her serious medical issues by the administration of the remaining amount of a drug she knew to be very dangerous without taking a single step to ascertain whether it was safe to do so. On the contrary, the only reasonable inference from that conduct, when engaged in by a person as intelligent and caring as Mrs Eckersley, is that she intended to end her mother’s suffering by ending her life.

48. As I have stated, Mrs Eckersley’s evidence at the trial was to the effect that, like the temazepam she administered, she intended to administer the green dream “to sedate her [mother] … if she was agitated.” [91] However, when Mrs Eckersley administered the green dream, her mother was not agitated. In neither her ERISP nor her evidence, did Mrs Eckersley describe her mother being agitated when she first saw her on the evening of Sunday 5 August 2018. To the contrary, she described having to rouse her mother to feed her soup. [92] Mr Eckersley did not describe Mrs White as being agitated at that time. [93] One of the carers who attended on Mrs White at around 3.30pm described her as not “look[ing] right” and having “one eye open and one eye closed”. [94] However, that is not a description of agitation. More importantly, the carer who attended upon Mrs White between 4.00 and 4.30pm described her as “quite settled”. [95]

    91. T 931.16.

    92. T 855.25.

    93. T 66 to T 67.

    94. T 351.

    95. T 343.11.

49. Accordingly, I reject Mrs Eckersley’ evidence that she only administered the pentobarbitone to sedate her mother to relieve her suffering and nothing more. In making that finding, I am not finding that Mrs Eckersley’s evidence at the trial on this topic was a lie. I am satisfied that, in the time since her ERISP, Mrs Eckersley has convinced herself that she did not intend to kill her mother.

50. Further, in making the finding that Mrs Eckersley administered the pentobarbitone intending to kill her mother, I have not overlooked the psychiatric evidence, which I will come to. I am left uncertain whether, during the night of 5 August 2018 and the days leading up to the ERISP, Mrs Eckersley was concealing her conduct or was psychologically protecting herself. I am doubtful that matters because, even if she was concealing her conduct, it was only out of genuine panic and not something nefarious. This was not a well organised killing. It was both, as the Crown opened, an act of love and, as Mrs Eckersley stated in the ERISP, an act of despair and desperation. It was also a product of impaired judgment. So much so that Mrs Eckersley brought her mother’s travel bag with her. This was done perhaps because, while Mrs Eckersley intended to kill her mother, she was not sure if and when that would happen or perhaps because preparing and looking after her mother’s day‑to‑day needs was ingrained, or both. Whatever the explanation for that aspect of Mrs Eckersley’s conduct, it does not detract from my finding about her intention. Equally, however, it means that I am not satisfied beyond reasonable doubt that the intention to kill was formed any time prior to that period immediately before her journey to Warrigal on the afternoon of Sunday 5 August 2018 when she contemplated having borne witness to her mother’s deterioration over the years.

Substantial Impairment

51. It follows from these findings that Mrs Eckersley is to be sentenced for manslaughter on the basis that she established the partial defence of substantial impairment provided for in sub-section 23A(1) of the Crimes Act.

52. To establish this defence, the onus of proof was on Mrs Eckersley to establish three matters. The first was that she had an “abnormality of mind arising from an underlying condition” being “a pre-existing mental or physiological condition, other than a condition of a transitory kind” (Crimes Act, s 23A(1) and (8)). Both Dr Adams and Dr Eagle concluded that, as at 5 August 2018, Mrs Eckersley was suffering from a major depressive disorder and that it was not transitory. Dr Adams first saw Mrs Eckersley soon after her mother’s death and had seen her regularly since then. His diagnosis was a “recurrent major depressive disorder”. He noted four episodes in her life of persistent and pervasive low mood, deterioration of sleep patterns, energy levels, appetite, motivation, concentration and capacity to enjoy activities. [96] He said that her depression re-emerged in August 2018. [97] He said that she had severe depression. Dr Eagle described Mrs Eckersley’s depression as moderate to severe. [98] Nothing turns on the difference.

    96. T 734.

    97. T 735.

    98. T 787.4.

51. The second matter that Mrs Eckersley had to establish was that, by reason of her abnormality of mind, at least one of three faculties was substantially impaired, being her capacity to understand events, her capacity to judge whether her actions were right or wrong, or her capacity to control herself.

52. Dr Adams concluded that all three capacities were substantially impaired. [99] Dr Adams contrasted her conduct on that night with her impeccable good character as strongly suggestive that her capacity to judge whether her actions were right or wrong was substantially impaired. [100]

    99. T 737.

    100. T 739.1.

53. Dr Eagle disagreed with Dr Adams on the extent of Mrs Eckersley’s impairment but did accept that her depression had “some impact” on her understanding of events and her ability to reason as to the wrongfulness of her actions. Dr Eagle did not consider her ability to control herself was affected. [101] Both Dr Adams and Dr Eagle agreed that the conduct of Mrs Eckersley in preparing, transporting and administering the drugs on both nights bore upon any assessment of whether her capacity to control herself was impaired. [102]

    101. T 773.35.

    102. T 740.1; T 752.4; T 753.43.

54. In light of this evidence and the jury’s verdict, I am satisfied, on the balance of probabilities, that Mrs Eckersley’s capacity to understand events and judge whether her actions were right or wrong was substantially impaired by her major depressive disorder. I am not so satisfied in relation to her capacity to control her actions, although in light of the other findings, I doubt that this adds much to any assessment of her culpability.

55. The third matter that Mrs Eckersley had to prove to establish the partial defence was that her impairment was so substantial as to warrant her liability for murder being reduced to manslaughter. This was a matter solely for the jury to consider, applying community standards. Given all the circumstances of the offence, especially the manner in which Mrs White was killed, and the acceptance by the Crown Prosecutor in his opening address that Mrs Eckersley “most likely [acted] with love and compassion”, then it is hardly surprising that the jury refused to attach the label “murderer” to Mrs Eckersley.

The Offender’s Personal Circumstances

58. I have already addressed most of Mrs Eckersley’s personal circumstances. Once the sentencing process is complete, she proposes to commence seeing a psychologist. [103]

    103. Exhibit 1 Tab 7.

59. On sentencing, a number of witnesses provided statements as to her integrity and the care she shows for others. [104] The jury heard evidence of her good character, specifically her absence of prior convictions, her devotion to her family, including her many grandchildren, her work with wildlife, her educational and business achievements and the professionalism she displayed in assisting a Parliamentary Committee investigating human cloning. Of these, her devotion to family predominates. Her daughter, Susanna Eckersley, told the Court of her mother’s caring and supportive qualities describing her as a “really wonderful” and an “inspiring” person. [105]

    104. Exhibit 1, Tabs 9 to 11.

    105. T 955.

60. To my observation, the trial was an ordeal for Mrs Eckersley. There is no doubt that Mrs Eckersley gave much of herself to looking after her mother’s interests yet she found herself publicly on trial for killing her. My impression is that Mrs Eckersley is a relatively stoic person who found a public examination of her mental state excruciating. On the one hand, these are all consequences of a criminal trial in an open court for someone who faces and has then been found guilty of a serious criminal charge. On the other hand, Mrs Eckersley took all reasonable steps to finalise this case much earlier. In a letter dated 31 January 2020 her solicitors floated a proposal with the Director of Public Prosecutions (“DPP”) for her to plead guilty to manslaughter although they queried proof of causation. [106] An unconditional offer was made on 27 February 2020. Mrs Eckersley was committed for trial on 15 April 2020. Mrs Eckersley repeated her offer on 26 August 2020. [107] All of her offers were rejected. Had they been accepted, then her ordeal within the justice system would have been over by now and the law would still have been vindicated.

    106. Exhibit 1 on sentencing, tab 2.

    107. Exhibit 1 on sentencing, tab 3 and tab 4.

Victim Impact

61. All of Mrs Eckersley’s siblings, namely her brothers, Peter, [108] Derek [109] and David, [110] as well as her sister Zoe, [111] gave evidence at the trial. Although there were references in the evidence to Mrs Eckersley and her sister Zoe having little to do with each other, [112] none of her siblings, including Zoe, appeared to bear her any ill will. To the contrary, they all appeared to be appreciative of her efforts in looking after their mother.

    108. T 90.

    109. T 97.

    110. T 114.

    111. T 107.

    112. T 107.

62. At the sentencing hearing, no victim impact statement was read by anyone associated with Mary White. I do not treat that circumstance as any reflection of a lack of grief at her death from her immediate or extended family. There are many reasons for the absence of such a statement and, in this case, that may include the traumatic situation that they find themselves in with another member of their family found guilty of unlawfully killing her and the knowledge that their mother’s final years were very difficult. The Court extends its sympathy to the family of Mrs White on her passing. As is clear from what I have said, she was a remarkable person.

63. Although the bulk of this judgment is devoted to an assessment of Mrs Eckersley’s conduct, character and mental state, it is the interests of Mary White and the tens of thousands, perhaps hundreds of thousand, like her that are the principal reason for undertaking that inquiry. Although there was a reference to euthanasia in the evidence adduced at the trial, as I said repeatedly throughout, this trial was not about euthanasia. It was not the Crown case that Mrs Eckersley killed her mother in a manner consistent with her belief system. Similarly, the defence case was not that she was acting in accordance with any conscientious belief she held about euthanasia. To the contrary, the defence case was that her actions were the product of a substantially impaired conscience, specifically, an impaired capacity to know right from wrong. The jury accepted that was so.

64. It would be unfair to those persons who in good faith advocate for the law to change to allow voluntary assisted dying for the Court to characterise this crime as an example of what they are seeking to legalise. Mrs White’s life was ended involuntarily in circumstances where it appears that she was not able to determine whether that is what she wanted. It was the ultimate violation of her human rights for someone else to determine that her life should end. Fundamental to the sentencing exercise concerning homicide is the need for the law to protect, and to be seen to protect, the sanctity of human life (R v Dowdle [2018] NSWSC 240 at [7] per Hamill J; “Dowdle”; cited in Cooper v R [2021] NSWCCA 65 at [84] per Bathurst CJ). Specifically, the law protects the vulnerable such as the aged, the infirm, the very young and the severely disabled, against even the well-intentioned decisions of others as to whether their life is worth living. Subject to the assessment that follows, the unlawful taking of such a life in those circumstances is a serious crime.

Aggravating and Mitigating Circumstances

65. Subsection 21A(2) of the Sentencing Procedure Act lists a series of aggravating factors the Court is to take into account in determining the appropriate sentence. Subsection 21A(3) lists a series of mitigating factors.

66. In relation to aggravating factors, the offence involved the victim being affected by a narcotic drug or other intoxicating substance (s 21A(2)(cb) and was committed in her home (s 21A(2)(eb)). Subsections 21A(2)(k) and (l) list as aggravating factors that the offence involved an abuse of a position of trust or authority in relation to the victim and the victim was vulnerable because she was very old. Contrary to Mr Ginges’ submission, [113] both aggravating factors are established. Even though Mrs White was a resident of Warrigal, the evidence reveals that Mrs Eckersley occupied a position of trust so far as some aspects of her mother’s care were concerned including assisting her with meals. There are obvious reasons why aged care facilities would allow this to occur.

    113. T 30/4/2021 p 20.

67. It follows from what I have already found, that a number of mitigating circumstances have been established. The offence was not part of any “planned” criminal activity (s 21A(3)(b)). Mrs Eckersley does not have any criminal record (s 21A(3)(e)), she is of good character (s 21A(3)(f), she is (overwhelmingly) unlikely to reoffend and she has good prospects of rehabilitation (s 21A(3)(f), (g) and (h)). Consistent with the finding of substantial impairment, she was not fully aware of the consequences of her actions due to her depression (s 21A(3)(j), albeit she intended to kill. Subsection 21A(3)(i) specifies that remorse is a mitigating factor. This is a rare case where, even though the offender pleaded not guilty and put causation in issue, she did not in substance deny “responsibility” for her mother’s death. My assessment is that since 5 August 2018, Mrs Eckersley has been haunted by her involvement in her mother’s death. I accept she is remorseful.

68. The combination of s 21A(3)(n) and ss 25D and 25E make provision for, and quantify, the discount on any sentence imposed on Mrs Eckersley on account of her early offers to plead guilty to manslaughter which were rejected by the DPP. It was accepted that Mrs Eckersley satisfied s 25E(1) and this entitles her to a reduction of 25% in any sentence that would otherwise be imposed (s 25E(3)(a)). The references to a 25% discount only make sense in the context of a determination by a Court to impose a custodial sentence. I have also considered the early offer a plea of guilty to manslaughter by Mrs Eckersley in the context of whether I am satisfied in terms of s 5(1) of the Sentencing Procedure Act, a matter I will return to.

69. Mr Ginges submitted that it should be accepted that the administration of justice was facilitated by the manner in which the defence was conducted (Sentencing Procedure Act, s 22A). [114] I agree. The defence co-operated prior to and during the trial. The trial was conducted efficiently.

    114. T 30/04/2021 at pp 22 to 23.

70. Mr Ginges also submitted that his client was entitled to a quantified discount under s 23 of the Sentencing Procedure Act on account of the assistance provided by his client to law enforcement authorities in her ERISP. He accepted that, by the time of the ERISP, there was already a police investigation into a suspicious death. Nevertheless, Mr Ginges contended that the effect of Mrs Eckersley’s disclosures in the ERISP was that the police were provided with the identity of the drug and who administered it at an early stage and they were able to exclude Mr Eckersley as a suspect. [115]

    115. T 30/04/2021 at p 23.

71. Assuming that disclosures in a person’s ERISP about an existing investigation do fall with s 23(1), which is contestable (see Le v Regina [2019] NSWCCA 181 at [53] to [54]), then I nevertheless consider that no further quantified discount is warranted beyond the discount afforded for Mrs Eckersley’s rejected plea offer (and consideration given under s 22). It was submitted that by 8 August 2018, Mrs Eckersley was not a suspect in her mother’s death. [116] However, given the forthcoming autopsy and the evidence of her attendance upon her mother on the weekend, it was inevitable that she soon would be. It can be accepted that the ERISP was useful to the police investigation but, as Mrs Eckersley’s evidence in relation to the administration of temazepam and her intention showed, she departed from it substantially at the trial (s 23(2)(b), (c), (d) and (e)). To the extent that Mrs Eckersley admitted that she administered the green dream, that was later reflected in her offer to plead guilty for which she will receive a discount (s 23(2)(f)).

    116. Defence written submissions in reply dated 5 May 2021 at [10].

Sentencing Objectives and Other Cases

72. It is necessary at this point to outline two central features of the Sentencing Procedure Act.

73. Section 3A of the Sentencing Procedure Act specifies the various purposes of sentencing. They relevantly include “ensur[ing] that the offender is adequately punished for the offence” (s 3A(a)), deterring the offender and others (s 3A(b)), protecting the community from the offender (s 3A(c)), promoting the offender’s rehabilitation (s 3A(d)), making the offender accountable for their actions (s 3A(e)), denouncing their conduct (s 3A(f)) and recognising the harm done to the victim and the community (s 3A(g)).

74. In Mrs Eckersley’s case, she is, in the relevant sense, fully rehabilitated and is not a danger to the community. The circumstances that gave rise to the killing of her mother will not be repeated. Otherwise, a number of principles have emerged concerning the weighing of these factors in the circumstances of a mentally ill offender especially one who has established the partial defence of substantial impairment. Three of these principles are of present relevance.

75. The first principle is that where an offender suffers from a mental impairment then general deterrence plays a reduced role, if any, in their sentencing as do considerations of retribution, denunciation and punishment (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53] to [54]. Further, in such cases, the offender’s moral culpability is, or may be, reduced (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; “De La Rosa”; R v Israil [2002] NSWCCA 255 at [23]; Barbieri v R [2016] NSWCCA 295 at [53] per Simpson JA; “Barbieri”). An assessment of moral culpability is critical to fixing the appropriate sentence for manslaughter (R v Winter [2012] NSWCCA 218 at [41]). This is applicable to Mrs Eckersley.

76. The second principle is that, in considering the appropriate punishment for a person with a mental condition, it may be that a custodial sentence will weigh more heavily on them (De La Rosa at [177]; Barbieri at [23]). This has some application to Mrs Eckersley’s case. I have no doubt that serving a custodial sentence would be difficult for her. However, it is difficult for most offenders.

77. The third principle is that in some cases the need for specific deterrence may be much reduced or eliminated by reason of the person’s mental condition (De La Rosa at [177]). This is also applicable to Mrs Eckersley.

78. Subsection 5(1) of the Sentencing Procedure Act is crucial to the outcome of this case. It provides that a Court “must not sentence an offender to imprisonment unless it is satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate”. This requires a consideration of the alternatives to imprisonment and the extent to which they fulfill the sentencing objectives in s 3A. However, the requirement is only to consider them, not be dictated by them (R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; [1979] HCA 32). Just because a Court might consider that the available alternatives are inadequate does not necessarily mean that imprisonment is appropriate. The Court must be positively satisfied that is so (MARTIN, Alexandra Jane v R [2013] NSWCCA 24 at [43]).

79. The Sentencing Procedure Act provides for various non-custodial alternatives. One alternative is a conditional release order under s 9, however that is clearly inappropriate for such a serious offence as manslaughter. Another is a Community Correction Orders with various conditions imposed under s 8 including observance of a curfew, performance of community service or a treatment condition (s 89(2)(a), (b) and (c)). A Community Correction Order is the most serious sanction that can be imposed if the test in s 5(1) is not overcome. This option was urged upon the Court by Mr Ginges. [117]

    117. Defence submissions in reply dated 5 May 2021 at [17].

80. In most criminal cases, a conclusion that the threshold in s 5(1) was overcome would not necessarily result in the offender being jailed. Section 7 and Part 5 of the Sentencing Procedure Act enable a court to impose an Intensive Correction Order (“ICO”) for many offences in particular circumstances and where it would otherwise impose a term of imprisonment that does not exceed 2 years (s 68(1)). An ICO is not one of the alternatives to be considered in determining whether s 5(1) is satisfied (Mandranis v R [2021] NSWCCA 97 at [25]). However, by a legislative change that took effect in September 2018, and which applies to this case, courts were deprived of the power to impose an ICO for, amongst other offences, manslaughter. [118] Hence, in this case if I determined that the threshold in s 5(1) has been satisfied, then I would have no option but to sentence Mrs Eckersley to full‑time imprisonment. Consistent with that, the Crown Prosecutor submitted that no penalty other than full-time imprisonment should be imposed.

    118. Section 67(1)(a) inserted by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017.

81. This legislative restriction on the sentencing options available to the Court for manslaughter is surprising given that it has long been accepted that, of all crimes, manslaughter is said to "thro[w] up the greatest variety of circumstances affecting culpability" (R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep) ("Blacklidge"). In R v Blake Davis [2021] NSWSC 235 at [138], N Adams J described manslaughter as “almost unique” in the variety of factual circumstances it entails in that it can “vary from joke gone wrong to facts just short of murder”. Her Honour noted that the Judicial Commission statistics revealed that from 24 September 2018 to the time of that judgment only one person of the 38 people sentenced for manslaughter received a Community Correction Order and that apparently concerned the accidental discharge of a legal firearm while on a hunting trip (Blake Davis at [141] citing R v Yousef, District Court, 8 November 2019, unrep). The significance of September 2018 is that is the date when the possibility of imposing an ICO for manslaughter was removed.

82. Allowing for the differences between the sentencing regime for manslaughter that has applied since September 2018 and previously, it is instructive to note the penalties imposed in other cases that I was referred to and which either involved killings in roughly comparable circumstances, substantially impaired offenders or both.

83. In Dowdle, the offender killed her son by giving him an overdose of sedatives. She had cared for him for many years when he suffered severe disabilities following a car accident, but he had been abusive towards her. The offender pleaded guilty to manslaughter on the basis of substantial impairment. She was refused bail. By the time she appeared for sentencing she had served more than two years in jail. Hamill J rejected a Crown submission that a bond was appropriate instead determining that the taking of a human life in that case meant that s 5 was overcome. His Honour imposed a custodial sentence but, as it commenced from the time she was taken into custody, she was released immediately.

84. Dowdle is a common example of a number of manslaughter cases involving killings of vulnerable persons by those close to them where the offender is often substantially impaired and otherwise does not represent a danger to the community. In these cases, there is often a recognition that the period of custody or quasi-custody they have already experienced is sufficient punishment (see for example R v MB [2017] NSWSC 619; R v Jans [2000] NSWSC 525). However, these cases do not assist Mr Ginges’ principal contention that s 5(1) is not satisfied. The explicit or at least unstated premise of many of these cases is that the threshold in s 5(1) was satisfied but the time already served suffices. Mrs Eckersley has only served two days in custody so a substantially backdated sentence cannot be imposed.

72. In R v Mathers [2011] NSWSC 339, the offender pleaded guilty to the manslaughter of his partner on the basis of substantial impairment (at [73]). She was aged and suffered intense pain from chronic medical conditions. Ultimately, she took an overdose of medication to commit suicide but when it was not working the offender administered more medication which caused her death (at [19]). Hall J sentenced the offender to imprisonment for two years but suspended the sentence on condition he enter into a good behaviour bond (at [109]). Again, implicit in that assessment was that the threshold test in s 5(1) was satisfied. This Court no longer has the power to impose a suspended sentence.

73. In R v Justins [2008] NSWSC 1194 (“Justins”), the offender’s partner was diagnosed with Alzheimer’s disease and was suffering from a progressive decline in his cognitive functioning. The offender poured him a glass containing pentobarbitone which he knowingly consumed and died. The offender was found guilty of manslaughter by gross criminal negligence in circumstances where the jury found the deceased lacked the capacity to commit suicide. The conviction was later set aside on the basis of the jury directions (Justins v Regina [2010] NSWCCA 242) and the offender ultimately pleaded guilty to aiding and abetting suicide (R v Shirley Justins [2011] NSWSC 568). Of present relevance is that when she was convicted of manslaughter, Howie J determined that no sentence other than imprisonment could be imposed (Justins at [57]). His Honour sentenced the offender to 22 months periodic detention. No such sentencing option is now available.

74. However, there is an important caveat that must be added to this description of the decision in Justins and any attempt to rigidly apply the outcome in that case or the other cases to this case. In Justins, Howie J noted (at [55]) that “there are exceptional cases of manslaughter where the court can appropriately determine that a sentence other than imprisonment can be imposed”. His Honour did not accept that Justins was one of them “chiefly because of the considerable amount of planning involved in bringing about the deceased’s death over a not insignificant period of time”. Unlike Justins, this case did not involve much planning. Further, unlike Mrs Eckersley, the offender in Justins was not suffering from any relevant mental illness.

75. The phrase “exceptional case” as used by Howie J in Justins is not a statutory one but simply reflects a very experienced judge’s assessment that, given the gravity of a charge of manslaughter, relatively few cases would fall under the threshold specified in s 5(1). Thus, it is consistent with the observation of Harrison J that “not every case of manslaughter automatically attracts the imposition of a term of imprisonment” (Patel v R [2019] NSWCCA 170 at [42] with whom Simpson JA and N Adams J agreed). An example of a case that bears this out was identified by Mr Ginges namely R v Sutton [2007] NSWSC 295 where Barr J imposed good behaviour bonds on two aging parents who pleaded guilty to manslaughter on the basis of substantial impairment after intentionally killing their severely disabled son by sedating him.

76. All these cases recognise the seriousness of a manslaughter which involves the killing of a vulnerable person who was dependent on the offender. Equally they reflect that s 5(1) is not necessarily satisfied in such a case.

Sentence

90. It follows from the above findings that, while I am satisfied that Mrs Eckersley intended to kill her mother, that intention was formed only just prior to her committing the act, the killing occurred in a context where her faculties were substantially impaired and was both done for love and a result of despair. Mrs Eckerlsey’s killing of her mother was a serious crime, however, her moral culpability was much reduced.

91. As I have said, the critical issue is whether the threshold in s 5(1) of the Sentencing Procedure Act has been satisfied. To answer that, I return to the objects of sentencing in s 3A. In sentencing Mrs Eckersley, there is no necessity to deter her from committing any further crime, rehabilitate her or protect the community from her. In light of the jury’s verdict and the above findings about her mental state, the necessity to deter others, punish Mrs Eckersley and denounce her are much diminished. To an extent, Mrs Eckersley had punished and continues to punish herself. Mrs Eckersley must be made accountable for her actions. That said, she accepted her true level of criminal responsibility long ago. I have sought to recognise the harm done by her actions to her mother and the community so far as the protection of the vulnerable is concerned. However, in the end result, to compound the sad end to Mary White’s remarkable life by imprisoning a daughter who cared for her, and loved her, would simply not be just. Having considered the alternative of imposing a Community Correction Order, I am not satisfied that no penalty other than imprisonment is appropriate. Instead, I will impose a Community Correction Order.

92. The Community Correction Order that I will impose will be for two years duration, contain the standard conditions set out in s 88 of the Sentencing Procedure Act and a treatment condition provided for in s 89(2)(c).

93. Mrs Eckersley, the offence of manslaughter is a "serious and violent offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.

94. Barbara Eckersley for the manslaughter of Mary White, you are convicted, and I order that:

1. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), you are placed on a Community Correction Order for a period of 2 years commencing today, 20 May 2021.

2. Pursuant to s 88(1) of the Crimes (Sentencing Procedure) Act 1999, the following standard conditions apply for the duration of the order:

(a)   you must not commit any offence; and

(b)   you must appear before the court if called upon to do so at any time during the term of the Community Correction Order.

1. Pursuant to s 89(1) of the Crimes (Sentencing Procedure) Act 1999, I impose the following additional condition which applies for the duration of the order, namely a treatment condition requiring you to receive treatment for your mental health problems as outlined in the report of Ms Emily Kwok dated 8 February 2021.

2. I direct that you not leave the Court precinct prior to signing this Order at the Registry.

3. I direct that you notify the Supreme Court Registry should you change your address during the period of this Order.

**********

Endnotes

Amendments

21 May 2021 - Community Corrections Order amended to read: Community Correction Order

Decision last updated: 21 May 2021