R v GJL

[2009] NSWDC 167

CITATION:	R v GJL [2009] NSWDC 167
HEARING DATE(S):	3 July 2009
EX TEMPORE JUDGMENT DATE:	3 July 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	Sentenced to a term of imprisonment with a non-parole period of four years commencing 3 July 2009 and expiring 2 July 2013. Additional term of imprisonment of two years to commence upon the expiration of the non-parole period and expire 2 July 2015.
CATCHWORDS:	CRIMINAL LAW - Sentencing - Manslaughter - death of 9 week old baby - baby shaking - single incident - drug abuse.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Borkowski [2009] NSWCCA 102 R v Hoerler [2004] NSWCCA 184 R v Howard [2000] NSWSC 876 R v Woodland [2001] NSWSC 416 R v Vaughan (1991) 56 A Crim R 355 R v Grierson NSWCCA 28 October 1996 R v Wilkinson NSWCCA 9 August 1999 R v O'Brien [2003] NSWCCA 121 R v Wilson (2005) 62 NSWLR 346 R v Mundene [2007] NSWSC 355 R v Monroe [2003] NSWSC 1271
PARTIES:	Crown GJL (Offender)
FILE NUMBER(S):	08/11/0995
COUNSEL:	R Hoenig (Crown) P Young SC (Offender)
SOLICITORS:	NSW DPP Greg Murray of Greg Murray Solicitor

SENTENCE

1 HIS HONOUR: On 16 February, 2009 the offender pleaded guilty to the following count on an indictment;

That on 7 February 2007 at Belmore South in the state of New South Wales she unlawfully did kill ML.

That count was laid under section 18 (1) (b) of the Crimes Act, 1900. The maximum penalty for that offence is 25 years imprisonment.

Facts

2 A statement of agreed facts was tendered (exhibit S5). Some of the relevant facts and chronological details of the relevant matters are as follows:

3 The victim, ML was born on 1 December 2006. He was about 9 weeks old at the time of his death. The offender, his mother, was then aged 26.

4 ML was born suffering with suspected withdrawal symptoms and was given Vitamin K. He was monitored by a midwife on weekly home visits until he was eight weeks old. Those visits came to an end about a week before his death. In January 2007 the midwife organized for one of the offender’s sisters, Monique, to take ML for a weekend of respite care.

5 On 15 January 2007, when ML was about six weeks old the offender, was taken by Ms Hornby-Howell, a midwife, to see a general practitioner, Dr Parkin. The offender said then that she was, “not coping with things and not bonding with ML.” She tested positive for amphetamines in a urine test on that day.

6 There were further concerns noted by a Child and Family Health nurse about the offender’s parenting skills at the end of January 2007. That nurse noted that ML was well at that stage. No health problems were reported by the offender. An appointment was made for the offender to see another general practitioner, Dr Harvey, on 2 February. At that stage there was no mention by the offender that ML was unwell.

7 A neighbour, Ms Kelly Campbell, said that she had visited the offender on the Saturday, 3 February 2007. At that time the offender complained about ML crying, saying, “He just doesn’t fucking stop crying. He just doesn’t fucking shut up.” In addition, Ms Campbell observed the offender pick ML up, putting her hands under his arms, and violently shaking him shouting out, “I should buy you a fucking skirt”. Ms Campbell described the offender as being, “very, very angry” when she shook ML. By way of replication, she demonstrated a corkscrew motion with the offender holding the baby in front of her, about 20 cms from her face, and screaming at him, while shaking him very violently. She said she could not count the number of shakes, because, “it was happening so fast”.

8 Ms Campbell also said that the offender, “was on methylamphetamine at the time and that Mr G had injected her.”

9 When the offender’s then partner, Mr G, came downstairs on that occasion, he described the offender as looking, “very pissed off”.

10 The offender left her home on Monday, 5 February 2007 to pick up Mr G’s seven-year-old daughter. She left ML in the care of her then partner, Mr G, who was asleep in the house. ML was lying on the lounge with him.

11 The offender did not go back to her home, but went to Ms Campbell’s house. She asked Ms Campbell if she could borrow some milk with which to make Mr G a cup of coffee, and then asked whether Ms Campbell could drive the offender and the baby ML to the hospital. She told Ms Campbell that ML was very ill. She said he had been, “peeing blood” and had only consumed about 10 mils of liquid in the past 24 hours. Ms Campbell said she would come and see ML and the offender left the house.

12 In the meantime, Mr G’s seven year old daughter, SG, had entered the house. She went up the stairs to change out of her school uniform. She said that her father then went down stairs to give ML a bottle, and SG followed not long later. She saw her father bend down beside ML and say, “bubba, bubba,wake up bubba” SG then said, “but bubba wasn’t breathing or moving, he was doing nothing”.

13 The offender then entered the house and immediately asked Mr G whether the baby was breathing. When she was told of the baby’s condition she then ran out of the house screaming for assistance. A telephone call was made to the triple 0 call centre. The offender indicated that her 2 month old baby was not breathing. Instructions on mouth to mouth resuscitation were given, with the offender passing those instructions on to Mr G. After a short time, in mid-call, the offender hung up the call and went outside. She later told police she did this because she could not cope with emotional situation. A triple 0 operator phoned back and Mr G answered the call.

14 When neighbours came into the house, one of them observed that the baby was laying flat on its back, was still and going purple with blue around its lips and face. When the ambulance officers attended, the baby was cyanotic and non-responsive to pain.

15 On the admission of ML to hospital Mr G volunteered that ML had been unwell since the preceding Friday. In a later interview with police he said ML had been sick for a few days, pale, lethargic and vomiting and was getting worse. He noticed that ML was not breathing at about 3pm on 5 February.

Reports to hospital

16 On admission, ML was seen by Dr Anscombe, an Emergency Specialist and General Paediatrician at the John Hunter Hospital. He recalls a conversation with the offender, and Mr G, with reports of ML being generally unwell for 3 days, with poor feeding and sleepiness. No complaint was made of vomiting or diarrhoea.

17 Dr Anne Piper took over from Dr Anscombe. Dr Piper is a Staff Specialist Paediatrician, with a specialty in Child Protection. The offender told Dr Piper that ML had been, “pooing and peeing”. The only medical concern the offender and Mr G raised was oral thrush, apparently having resulted from ML’s bottles not being sterilised. That was clearly either a minimization or a failure to report to the relevant medical authorities what had happened to the child and the subsequent physical symptoms, which must have been within the knowledge of at least the offender.

Death and diagnosis

18 ML died on 7 February 2007. The diagnosis was that he had suffered and died from inflicted injury with the cause almost certainly being a severe shaking episode.

19 The medical experts agreed that ML had suffered a violent shaking episode and had substantial bleeding in his brain leading to brain swelling and brain death. The mechanism of the brain injury was non-accidental trauma. The bleeding was described as fairly recent.

20 An autopsy was performed by Dr Nadesan on the 8 February 2007. The extent of the injuries is contained in Dr Piper’s summary as follows:

1. There were subdural haematomas and cerebral haemorrhages accompanied and followed by acute severe brain oedema; buponic brain damage;

2. There was extensive retinal haemorrhages of multiple layers;

3. There were no signs of injury on external examination, nor skeletal fractures;

4. There was no evidence of a medical condition or bleeding disorder, nor blood in his urine.

Reports and admissions by offender

21 While at the hospital Mr G volunteered that ML had been unwell since the preceding Friday. The offender was told that the doctors at the hospital would have to notify DOCS. The offender looked concerned and said she had had a, “hassle” with DOCS in the past. The offender directed hospital staff they were not to tell her family anything about ML’s condition or prognosis.

22 The offender was aggressive when interviewed by police, telling them her memory was bad. She said that she had suffered psychological damage from past traumatic experiences, when she was raped. She made no admissions about harming ML. Indeed, her comments at the hospital were to the effect that, “I wouldn’t hurt my baby”. That was clearly false.

Evidence on Sentencing Proceedings

23 The offender’s father, Mr L, gave evidence. He is the District Manager of the Community Services office in western, NSW. He and his wife also had 18 years work experience with the Salvation Army.

24 Mr and Mrs L were proposing to have ML come and live with them but those arrangements did not eventuate. The offender choose to continue having ML living with her and Mr G. Mr L said the offender now has another relationship with another person, called Scott.

Psychiatrist’s report

25 A psychiatrist’s report from Dr Bruce Westmore dated 30 April 2009 (exhibit S1) was tendered. A pre-sentence report was not sought.

26 Dr Westmore set out that the offender had been treated by her general practitioner for depression and substance abuse for many years. She had also been prescribed anti-depressants and anti-psychotic medication. Dr Westmore also noted the offender’s reported history of significant trauma, including her description of being raped at the age of sixteen, and being the victim of two subsequent sexual assaults.

27 The report also noted that Ms L said she was using illicit substances on a regular basis several times a day at the time ML died. She reported impaired memory in relation to the details of what occurred but a witness said that she saw Ms L shaking the child. Ms L told Dr Westmore that she had been taking psychiatric medication at the time her son died.

28 Dr Westmore’s opinion was that the offender is a person with multiple social, psychological and psychiatric problems. She had a history of a depressed mood and ‘possibly a recurrent major depressive illness’. It was unclear whether, as a matter of cause and effect, her history of drug abuse has a connection with the particular incident. Dr Westmore noted that the offender had serious and extensive personality difficulties and that she needed to maintain her sobriety from illicit drugs. Such abstinence might improve her long term prognosis.

29 Dr Westmore thought that on-going psychological support provided by a community based mental health service should be provided for the offender. Significantly Dr Westmore noted that, “It would be advisable if Ms L did not fall pregnant again.”

30 There was no expression of remorse by the offender to Dr. Westmore not to any one else. That needs to be considered in the light of Mr L’s evidence that his daughter had difficulties in her capacity to express emotions and her reaction and comments at the hospital after ML died.

Medical Reports

31 A report from Dr Terry Parkin, general practitioner of Newcastle, dated 12 March 2008, was tendered (exhibit S2). Dr Parkin had been the general practitioner for the offender.

32 The report noted that the midwifery team at the John Hunter Hospital had reported that Ms L was not coping with ML at age six weeks, nor was she bonding with the child. Ms L was also concerned about her mood swings and the absence of support from her partner and the midwifery team. Ms L had missed several appointments at Dr Parkin’s surgery and gave as an excuse the absence of transport.

33 A urine test was carried out on the offender on the 15 January indicating a positive result for amphetamine. Ms L said that her, “drink had been spiked”. Dr Parkin had also noted Ms L’s heroin usage in addition to her amphetamine usage, as well as the other antipsychotic and related medication she had been using. Ms L had had a relapse of Hepatitis C and had had a liver biopsy.

34 Ms L reported episodes of, “losing it” at times when she felt unable to control herself. Apparently she was tested by way of a CT Scan but there was no organic cause for her mood swings and anger outbursts.

Personal circumstances

35 The offender is aged 30 – her date of birth is 29 May, 1979. She has two other children, Mik L, born 4 September 1998, and NL, born 17 September 2001, both of whom are being looked after by her parents. The elder daughter has lived with her grandparents since she was six months old, pursuant to Family Court orders. The younger daughter has lived with Ms L’s parents for about two years dating from a couple of months prior to ML’s death. The grandparents have the care of the children following DOC's involvement. They currently live in western NSW and have some limited contact with their mother including by phone.

36 The father of ML was a man called Shane. The child resulted from a six-month relationship although the parties did not live together during that time. The pregnancy with ML was not planned and Ms L’s reports to various doctors was that she was, “a bit depressed during the ante-natal period.”

37 The offender had been living with Mr G for a month prior to ML’s birth. Mr G’s seven-year-old daughter SG, also lived in the house. The offender is apparently now in another relationship with a person called Scott.

Family

38 Ms L is the youngest of five children – she has three sisters and a brother. Both her parents are or have been members of the NSW Probation and Parole Service. They have provided significant assistance for the offender in caring for her and particularly her other two children.

Education and Employment

39 Ms L was educated to Year 10 level. She has had some part time employment in the service industry.

Support

40 Ms L reported to Dr Westmore that she had been, “in and out of counselling since she was sixteen” following the reported rape on her by persons with whom she was associating in her pursuit of alcohol. No person has been convicted in relation to any of the alleged rapes but the offender had to give evidence in a trial which, according to her father, was a re-brutalisation of the experiences she had suffered during the assault and rape.

41 She had apparently been admitted to the James Fletcher Hospital in April 2007 and to the psychiatric unit at the Maitland Hospital in May 2007, both admissions occurring after the death of ML.

Drug and Alcohol History

42 Ms L started using amphetamines at the age of sixteen and used needles for many years. She also used heroin from the age of 18 and for a number of years. Ms L was on different medications including antipsychotic medication Seroquel and Clopixol, as well as an anti-depressant Avanza at the time of ML’s death.

43 Ms L also reported to Dr Westmore that she had been in violent and abusive relationships and that one man allegedly forced her into prostitution. At one stage her drug habit was costing her $1000 per day.

44 Although the offender told Dr Westmore that she had stopped using illicit substances, there is no clinical evidence to this effect, importantly, the reverse was clearly the case at, or immediately prior to, the time ML died.

Section 21A factors - Crimes (Sentencing Procedure) Act.
Aggravating factors

45 Here there was a clear and gross breach of trust to a vulnerable victim.

Victim Impact Statement

46 A victim impact statement was read by Monique, the aunt of the victim and the sister of the offender.

47 It is clear that this matter and its consequences have had a substantial impact on the offender’s wider family. Further, this impact will have long-term consequences.

Mitigating factors

48 The offender has no prior convictions. She pleaded guilty on the first day of what was set down as a three-week trial. The utilitarian value of the plea to the criminal justice system was significant in that there was no necessity to call the various police and medical witnesses as well as the consequential savings in the time and resources of the Court, the prosecution, the police and the legal aid authorities. There were 12 or more expert medical and other witnesses, many of which to come from Newcastle. There were some disputed facts. There were early indication of many matters, which would not be disputed, and defence counsel notified both the DPP and the Crown of that.

49 In my view there was a high utilitarian value to the Court, the parties, the DPP and the various witnesses involved.

Remorse

50 The offender did not give evidence. In those circumstances what remorse there is, is inherent in the plea and the inference drawn by her father from what the offender has said. Mr L said that she didn’t express remorse, but that, “in those terms, her personality didn’t permit her.”

51 The discount applicable to these factors in the sentence which would otherwise be imposed should be 20%. There is an element of leniency in this approach given the decision of Howie J in R v Borkowski [2009] NSWCCA 102. However, I am satisfied that in these particular circumstances there was a significant utilitarian value in the plea.

Objective Seriousness

52 The starting point for the consideration of penalty and the assessment of the gravity of the objective circumstances is that what is involved is the felonious taking of human life.

53 The Crown case is that what was involved was one-off incident.

54 Defence counsel submits that what was involved was a spontaneous act indicative of a momentary lack of control and consisted of a single event rather than a course of action. Further, that her capacity to reason and exercise judgment in a stressful situation was lessened by virtue of her psychiatric condition and intake of amphetamines. Counsel also submits that that should lessen the justification for a sentence reflecting general and personal deterrence.

55 Here I consider that the objective criminality of the offence is in the middle of the range for offences of this type. The reason for that finding is that it is clear from the facts that the offender had inflicted injury to ML but it was an unplanned and spontaneous offence that was the result of her outburst of temper and inability to control herself in the circumstances of her drug usage. The injuries though serious and ultimately the cause of death, did not involve fracturing and breaking of bones and the other kinds of injuries sometimes experienced in these sorts of matters nor is there evidence of an on-going course of conduct. The Crown does not rely on any ongoing failure of care or criminal negligence on the part of the offender.

Delay

56 Both counsel agree that delay is not an operative factor in these circumstances either operating in favour of, or against the offender. It is accepted that none of the delays were attributable to the prosecutorial authorities or the police. However, given the period which has expired, it may be relevant to note the matters more fully detailed in exhibits S6 and S7.

57 The offence occurred on 7 February, 2007. The matter was transferred from the Newcastle District Court to the Sydney registry on 3 October, 2008 having a three week trial estimate.

58 The offender pleaded guilty on 16 February, 2009 the day the matter was listed for trial in Sydney. The Crown did not oppose bail and the matter was stood over for sentence on 15 May, 2009, a date suitable to the parties and to meet expected delays in the obtaining of expert reports. Directions were made that the defence would deliver psychiatrists/psychologists reports by 1 May, 2009, the Crown having until 8 May, 2009 to serve any answering material.

59 A further order was made that the agreed facts for sentence be forwarded to the Court by 1 May, 2009. Although a draft of the agreed facts was forwarded to the defence, the remaining orders and time limits were not complied with – mainly because there had been delays in obtaining relevant psychiatric material. In addition there were other trial commitments for the court and the sentence date was vacated on 11 May 2009. A suggested adjournment of one week did not suit counsel for both parties and a new sentence date of 3 July 2009 was set down.

60 The renewal of the offender’s bail on 16 February, 2009 was not opposed by the Crown and the offender has been on bail since her arrest.

Rehabilitation

61 The offender has been supported by a number of people and agencies over a number of years.

62 However, that has not lead to a change in her behaviour; either in terms of her drug usage at the time of the death, nor in terms of her capacity to care for dependents, nor in terms of her accepting responsibility for her own actions.

Authorities

63 I have considered the authorities as detailed below, the sentencing principles which appear to be relevant and the sentences imposed. What is clear from the authorities is that the courts have consistently treated the killing of young children by their parents or carers as serious cases of manslaughter. Although murder convictions will ordinarily attract greater penalties than manslaughter convictions, there will be cases where it will be appropriate for higher penalties to be imposed for manslaughter than for murder. No particular sentencing pattern emerges - R v Hoerler [2004] NSWCCA 184. The vulnerability of helpless infants and the dependency they have on their parents or carers for their safety and wellbeing was also stressed in Regina v Howard [2000] NSWSC 876 and in Regina v Woodland [2001] NSWSC 416.

64 Some of the relevant authorities are as follows:

R v Vaughan (1991) 56 A Crim R 355 – The respondent was charged with manslaughter and also charged with maliciously inflicting grievous bodily harm for an earlier incident in which he broke her arm and leg. Two weeks after the first incident he was awoken by his daughter’s crying. He picked her up by the ankles, flung her over his shoulder and deliberately threw her head first into the couch a number of times. On appeal the court increased the manslaughter sentence to four years and six months with a non-parole period of three years and six months.

R v Grierson NSWCCA 28 October 1996 (per Hunt CJ, Ireland and H Bell JJ) – child thrown across room, death as a result of skull fractures one-off episode of mistreatment; long history of substance abuse: marijuana, heroin; permanent psychiatric condition and post natal depression prior convictions (non-violent). Sentence: 6y, NPP 3 years.

R v Wilkinson NSWCCA 9 August 1999 – manslaughter constituted by criminal negligence failing to protect 6 month old child - de facto co-offender with greater culpability - not full knowledge of nature and extent of injuries but aware something seriously wrong following alleged fall in shower – extensive fracture of the skull – haemorrhage and serious internal injuries – criminal negligence consisted of not responding to a situation of risk and the medical crisis the child faced. Sentence: HS 6y 3m; NPP 3y.

R v O’Brien [2003] NSWCCA 121 - The appellant’s infant child died of malnutrition as a result of the appellant’s refusal to take her daughter to hospital for urgent medical treatment. The Crown case was that the appellant breached her duty of care to her child by a combination of acts and omissions. The defence was that the appellant suffered from battered wife syndrome and that the effects of this prevented her from initiating action to take proper steps for the welfare of the child. The appellant was sentenced to five years imprisonment with a non-parole period of two years.

R v Wilson (2005) 62 NSWLR 346 - The appellant shook a young child who was in her foster care causing his brain to swell and leading to asphyxia and death. The medical evidence was that this shaking would have occurred about 30 minutes before death and although she telephoned her husband and took the child to a medical centre, the attempts to resuscitate the child were unsuccessful. On appeal, she was sentenced to six years imprisonment with a non-parole period of four years and six months, with an additional term of 18 months for the grievous bodily harm count.

R v Mundene [2007] NSWSC 355 - Male killed de facto’s 7month old son by shaking – isolated anger against crying child – warned he could injure child – breach of trust – Aboriginal with disrupted background – drug abuse – immaturity – remorse – Sentence: 6y 9m NPP 3y 9m.

R v Hoerler [2004] NSWCCA 184. The injuries set out in that judgment were particularly horrific – see [8] – and included a crushed liver, crushed toes, multiple rib fractures and other penetrative injuries on a seven month old child. Moreover there was a continuum in the duration of violence and obvious gratuitous cruelty. The violence was intentional, repeated and severe.

R v Monroe [2003] NSWSC 1271 the offender shook 3m baby boy – threw baby on lounge and punched in abdominal area – angry and intoxicated - Depression and heart condition – protective custody. Sentence: 7y 6m, NPP 4y

Consideration

65 In addition to the considerations of general deterrence, this sentence must be such as to act as a form of specific deterrence and a mark of condemnation for the offender’s conduct in causing the death of her child as well as the inter-related facts that this conduct seems to have been directly related to, if not caused by, her drug usage immediately prior to and at the time of ML’s death. The Crown does not advance a submission of a failure to care as part of the criminality of the offender.

66 In terms of the principles to be gleaned from the authorities referred to above, what was involved here was the killing of a nine-week-old baby by his drug-addicted mother. While the wearing impact of a continually crying infant cannot be under-estimated, particularly when it has occurred over some weeks, the offender had had some help from individuals and agencies and a period of respite care over that same period. The ultimate events seem to have been more a reflection of anger and frustration without any form of self-control and the abandonment of any sense of responsibility. A defenceless and fragile nine-week-old baby died.

Personal/subjective factors

67 The offender is aged 30. She has two children who are being looked after by her parents. She has no prior convictions. This is somewhat surprising in view of the long history and clear pattern of multi-substance drug abuse with which the offender had been associated for some years. That abuse had been known to her parents who were or are members of the Probation and Parole Service as well as having had a variety of positions with other organisations such as the Salvation Army over some years. Her parents were aware at the time that the offender was not coping with living with ML. They were unaware that Mr G was a primary caregiver for ML. DOCS officers had been aware of her conduct and inabilities to cope with her elder two children, which led to their removal from her care and into that of their grandparents.

68 It may be that some earlier and more dramatic form of intervention would have brought it home to the offender at an earlier time that her self-destructive behaviour should be stopped before it flowed on to lead to her baby’s death. I see nothing in the evidence to indicate that she has taken responsibility for her own actions, reactions and behaviour – and particularly her drug habit and its consequences.

69 It is clear from Ms Campbell’s evidence that the offender had been using methylamphetamine intravenously at the time of the offence. On the morning that ML was shaken, the offender was, “coming down and seemed tired”. It is clear that the offender reacted angrily and using her comments, that she had, “lost it” and had become agitated. In that regard it should also be noted that when the offender had tested positive for amphetamines on 15 January 2007, she replied that, “her drinks had been spiked”. Given the long term drug usage of the offender, that is a comment which may indicate her preparedness to blame others and not to face up to her own drug habits and its consequences. Ms L’s denial of her own drug usage contrasts with that of Mr G who said that Ms L had been using amphetamines during the last month of her pregnancy and that she used it about twice a day after ML was born. She said that if she did not get the drugs she would be agitated.

70 The offender has been offered assistance in the past from a variety of people including her own family, helping agencies, medical agencies and midwives. There had been weekly visits from the midwife. She had had a period of respite care. On the morning of 5 February when she contacted Ms Campbell, and when she clearly knew that there was something seriously wrong with ML. She did not contact either her family or any of the extensive range of people, professionals or helping agencies with whom she had been in contact in the previous weeks. She must have had some knowledge of what had occurred to ML given what Ms Campbell observed on 3 February and what she told Ms Campbell on 5 February 2007, namely that ML had been, “peeing blood” and had had very limited consumption of liquids in the past twenty-four hours. However, as I have said, the Crown does not rely on any kind of criminal negligence nor continuing neglect as part of the criminality involved.

71 The offender as a mother of a two-month-old child had left the baby with Mr G who was asleep on a lounge. Mr G was a person who had been described by Ms Campbell as having injected the offender.

72 When interviewed by the police on 6 February, she did not admit any matter relating to the care of her baby but reiterated the psychological damage she had from the past traumatic experiences when she was allegedly raped. Those events would have occurred at least six to seven years prior. Those events, and their impact and the potential for long term psychological and emotional scarring, cannot be minimized. There is no evidence which satisfies me that she will be capable of accepting her responsibility, particularly given her father’s account of how the offender had been brutalised both in the assaults on her and the subsequent trial. Her two elder children had been removed from her care. That does not appear to have led to any improvement in her conduct in terms of her maternal responsibility or her capacity to be responsible for her own actions.

73 In terms of the aggravating factors listed, there was a clear and gross breach of trust to a vulnerable victim, being this two month old baby who experienced the injuries detailed in the pathologist’s report, and who was left in the care of Mr G.

74 What must also be considered are the personal factors relating to the offender, given her age, the fact that she has no prior convictions and the fact that she is going to have to live with the consequences of her conduct for the remainder of her life. In addition there is the fact that the offender has had these matters hanging over her head for about two and a half years.

Special circumstances

75 It was put on behalf of the offender that she required a lengthy period of supervision for her ongoing treatment for her psychiatric problems and to avoid a relapse into drug addiction. Further, that her age, (30) and the fact that she has two other children as well as the family structure and assistance available to her, warrant a finding of special circumstances.

76 The difficulty with that submission is that the offender has had those children and that family for some considerable time. There has been no indication that she has used those resources nor support to rectify her lifestyle or accept responsibility for her actions, in particular, her drug taking and the persons, and the kind of persons, with whom she has associated, over the last decade.

77 The prospects for her future in terms of accommodation would appear to be limited to having contact with, and possibly living with, her parents and her extended family. They may move to an area close to Newcastle. Living with her family was an arrangement, which clearly did not work in the past. It may also be disruptive to her two children should she return there after being in gaol for some years. Her father, Mr L proposed to investigate a half way home accommodation option on her release from goal.

78 I am prepared to find special circumstances based on the need for supervision, and a longer period on supervision that would normally be the case but that should be relatively limited as the effectiveness of that supervision should become fairly quickly apparent. My recommendation will be that that supervision should be close and frequent and involve random urine and other forms of analysis. The adjustment to the normal statutory ratio, which the non-parole period bears to the head sentence should be two-thirds.

Sentencing options

79 Despite the offender’s age and the absence of any prior convictions, I do not consider that the facts of this offence and the requirement of general and personal deterrence would be met by the imposition of a sentence other than one of full time custody.

Transparency of Discounts

80 Normally a sentence of facts of this nature with the factors I have listed above being present and the personal circumstances of the offender would be of the order of seven to eight years imprisonment. Applying a discount of 20% to that figure – and I have adopted the mean figure of seven and a half years – of that being the appropriate percentage I have determined for the plea and the remorse inherent in it, would lead to a head sentence of six years imprisonment. Applying the statutory ratio I have determined should be appropriate by virtue of my finding of special circumstances would result in a non-parole period of four years imprisonment. (90 months x .20 = 18 months: 72 x .66 = 48 months)

Sentence

81 The offender is convicted on the count to which she pleaded guilty.

I sentence you to a term of imprisonment with a non-parole period of 4 years commencing on 3 July 2009 and expiring on 2 July 2013. There will be an additional term of 2 years to commence upon the expiration of the non-parole period and expire on 2 July 2015.

I recommend the following conditions be established as part of the offender’s parole.

1. That she notify the Probation and Parole Service of her address and any person with whom she is in a relationship as well as details of her medical practitioner and any treating specialist from time to time.

2. That she comply with all directions for random urine testing and drug analysis, as directed by the Probation and Parole Service or any other health professional with whom she comes into contact.

3. That she notify the Probation and Parole Service if she becomes pregnant.

4. That she participates in any ongoing psychological and psychiatric counselling as may be directed.

I find special circumstances.

82 I direct a copy of these remarks be forwarded to the Newcastle office of the Probation and Parole Service and the Newcastle Office of the Department of Community Services, showing the name of the offender.