R v RG

[2006] NSWSC 21

CITATION:	R v RG [2006] NSWSC 21
HEARING DATE(S):	23/01/2006, 24/01/2006, 25/01/2006, 31/01/2006
JUDGMENT DATE :	2 February 2006
JUDGMENT OF:	Buddin J
DECISION:	The offender is sentenced to a non-parole period commencing on 31 October 2004 and expiring on 2 February 2006 with a total term commencing on 31 October 2004 and expiring on 30 October 2007.
CATCHWORDS:	Sentence - manslaughter - substantial impairment - offender suffered from a psychotic disorder - "defence" of "mental illness" available but not relied upon
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Azzopardi [2004] VSC 509 R v Blacklidge (CCA, 12 December 1995, unreported) R v Cameron (2002) 187 CLR 65 R v Cooper [2001] NSWSC 769 R v Dawes [2004] NSWCCA 363 R v Durocher-Yvon (2003) 58 NSWLR 581 R v Engert (1995) 84 A Crim R 67 R v Grierson (CCA(NSW), unrep, 28 October 1996) R v Hill (1980) 3 A Crim R 397 R v Hoerler (2004) 147 A Crim R 520 R v Li [2000] NSWSC 1088 R v McDonald (CCA, 12 December 1995, unreported) R v Morgan (1993) 70 A Crim R 368 R v Pope [2002] NSWSC 397 R v Richards [2002] NSWSC 415 R v Scognamiglio (1991) 56 A Crim R 81 R v Sette [2000] NSWSC 648 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Troja (CCA, 16 July 1991, unreported) R v Wright (1997 93 A Crim R 48
PARTIES:	Regina RG (Offender)
FILE NUMBER(S):	SC 2005/1007
COUNSEL:	L Gray (Crown) M Austin (Offender)
SOLICITORS:	S Kavanagh (Crown) Walker Smith (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 2 FEBRUARY 2006

R v RG

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, whom I shall refer to as RG, appears for sentence in respect of the manslaughter of her daughter, whom I shall refer to as RM. It is necessary to use pseudonyms for various persons in order to protect the identity of the deceased who was a seven month-old baby at the time of her death. The offender is now aged 45.

2 The offender was originally charged with the murder of RM on 31 October 2004 at Wingham. She has been in continuous custody since that date, a period of slightly more than fifteen months. Before the jury was empanelled Mr Austin, who appears on behalf of the offender, took objection to part of a conversation which the offender had with police. Following my decision to overrule the objection and to admit the evidence in question, the offender pleaded guilty to manslaughter, a plea which was accepted by the Crown in full satisfaction of the indictment. The plea was accepted upon the basis that RG was suffering at the relevant time from a “substantial impairment” within the meaning of s 23A of the Crimes Act. The maximum penalty for the offence is imprisonment for 25 years.

3 A comprehensive statement of facts was tendered by the Crown without objection. It is agreed that it provides the factual background against which I should proceed to sentence the offender. It is, subject to minor modifications, in the following terms:

On the morning of Sunday 31 October 2004 at about 11.00 – 11.30 am, three fishermen, Raymond Wilson, Peter Turner and Jason Turner put their fishing boat into the Manning River at the Wingham Brush boat ramp. They proceeded upstream from the boat ramp and under the Bight Bridge. Some distance along the river after the bridge they saw a naked female sitting on the river bank. The woman was to their left as they travelled upstream. The person was sitting on the riverbank with a black and white border collie/cattle dog. That person can only have been the offender. When first observed, she was sitting on her bottom or squatting on her haunches with her legs drawn up to her chest. She was some 20-30 feet away from the water’s edge on a gently sloping gravel bank on the south side of the river.

As the boat approached level with where the offender was sitting, she stood up and walked in a direction towards farmhouses along that side of the river. She did not appear to have anything in her hands or arms and did not pick anything up. She did not acknowledge the men in the boat but walked off in a line towards Brown’s Close with the dog following her. No clothes were seen on the riverbank. The three men continued up river for some distance where they fished until early evening of that day.

At about 1.30pm on that same day two other fishermen, Michael Clarke and Phillip Hinton, put Hinton’s aluminium “tinnie” into the water at the boat ramp at Wingham Brush. They proceeded upstream towards the Bight Bridge. Hinton was driving/steering at the rear. Clarke sat at the front of the boat. The men had a clear view of both riverbanks in both directions. They did not see anyone in the water or on the banks. They approached the bridge and passed under it closer to the southern bank. After going under the bridge they started across to the northern bank where the channel was deeper. They travelled some 150 metres from the bridge diagonally towards the north bank when Hinton saw an object floating in the water. It looked at first like a doll in the water. On closer inspection they realised it was a human baby.

The baby was floating face down. The child’s bottom was above the water line. They were able to see the baby’s genitals, which were female. The feet and the head were submerged. The soles of the baby’s feet were wrinkled as if they had been in the water for some time. The child appeared to be dead.

Clarke and Hinton looked around the riverbanks and river in both directions. Neither was able to see anyone, nor hear anything. They decided not to touch the body and to call police. Hinton drove the boat back to the bridge on the northern bank. Clarke got out of the boat, ran up to the road, hailed a passing motorist and asked him to notify police. Hinton stayed in the boat and kept watch on the body. A 000 call was received at 2:06 pm.

Senior Constable Jamie Oliver was despatched to the scene, arriving at around 2.10 p.m. Clarke pointed out where the baby was. Oliver went with Clarke down to the boat. They motored out to the body. Oliver made similar observations as the other two men as to the position of the baby in the water and the sex of the child. Hinton brought the boat alongside the body and Oliver lifted the baby from the water and placed her body on a plastic sheet in the boat. The body was cold to the touch and the lips were blue/purple. There were no vital signs or movement.

Oliver called for assistance over the radio. The trio motored back towards shore, when they heard a woman screaming “Help me, help me.” They saw a woman swimming, not all that effectively, toward them from the southern half of the river. The woman was yelling hysterically. That woman was the offender.

Oliver directed Hinton to first get the baby to shore in order to try and help it. They told the offender that they would be back for her. Clarke got out of the boat, carrying the baby in his arms on the plastic sheet. Hinton took Oliver back out to where the offender was in the river.

When they arrived at the offender, Oliver took hold of her at the side of the boat and asked her what was wrong. The offender said to him “I am a bad mother, where is my baby?” Hinton took the boat to shore, with the offender remaining in the water, held by Oliver and being pulled along at the side of the boat. The offender was rambling and appeared to be in a state of shock. She kept calling out “Where’s my baby? Where’s my baby?”

Two female police officers, Constables Lisa Howard and Sharyn Couch, had arrived at the bridge by this time. They could see the offender being towed to shore. Constable Oliver indicated to Clarke, who was still holding the baby’s body in his arms, to take the baby up onto the bridge. As Clarke started along the track up to the bridge, he met up with Constable Couch and handed the baby to her. Couch took the baby up the track to the roadside, arriving at the top as an ambulance arrived. The baby was placed on a stretcher in the back of the ambulance and the ambulance officers made immediate efforts to resuscitate her.

The offender was assisted from the water. She was completely naked. She was distressed, and moaning, shaking and crying. She said repeatedly “Where’s my baby, where’s my baby?” Couch assisted her to walk up the track to where the ambulance was parked. The offender attempted to pull Couch towards the ambulance. She was restrained in order to prevent her from impeding the ambulance officers. Couch said to her “What is your name?” The offender replied, “I am Jesus. I’ve done some bad things. I am a bad mother. I’ve drowned my baby.”

Ambulance officer Anthony Brown examined the baby. Heart monitor was asystole. He could detect no pulse and no breathing. The child was cold to the touch. The ambulance conveyed the baby to hospital. Once there extensive and vigorous resuscitation procedures were undertaken. They were unsuccessful. Ultimately at 16:59 that afternoon life was pronounced extinct.

In the immediate aftermath of the child having been removed from the scene, the offender was asked some short questions as to the child’s particulars, her address, her domestic situation and details of the father of the child. After a short while the offender said “I don’t want to talk any more”. She lapsed into a state of silence and non-responsiveness. A black and white border collie appeared beside the offender.

Senior Constable Oliver, who had remained down at the riverside, asked Hinton and Clarke to travel along the northern river bank to see if they could see any clothing. They did this with no result. Later that day both river banks and surrounds were extensively searched by police and SES personnel. No clothing was found.

The offender was initially taken to Manning Base Hospital. At about 5:15pm she was taken to Taree police station where she was formally charged. She was kept in custody and under close observation at the police station for some time before being taken back to hospital. Throughout she was mute and unresponsive to questions, at times moaning and deeply distressed. On admission to the hospital the offender was observed by Dr Anne Smith for 30 minutes. Dr Smith completed a Schedule 2 Form under the Mental Health Act. The offender was also examined by Dr. Bevin McCartan who diagnosed her as mentally ill based on the history given. He said that she was “in an agitated, unresponsive state. Highly anxious. Not responsive to verbal command. Has been in this state since arrival at station. Rocking backwards and forwards. High anxiety state.” The offender was transferred to the Acute Mental Health unit at the hospital.

Sometime during the morning of 1 November, Dr Michael Richardson, a psychiatrist, assessed the offender. Dr Richardson was of the view the offender was “quite mad and suffering from psychosis.” He prescribed the mild tranquilizer Midazolam and Droperidol which is an anti psychotic drug. These medications were administered by injection at 1 pm on 1 November. The offender then fell asleep. Dr Richardson noted the effect of the anti psychotic drug would cease after about 12 hours and without further medication the psychosis would be likely to return.

Police executed a search warrant on the offender’s home at 49 Brown’s Road, the Bight, via Wingham. Adult female clothing together with a used menstrual pad and a baby singlet were found in a bundle on a seat in the dining room. (It had earlier been observed that the offender was menstruating). This bundle of clothing and the pad stood in contrast to the rest of the premises which were exceptionally neat and tidy. In a kitchen bin police found torn bits of notepaper (on which were handwritten notes), some rat poison and a partial set of dentures. The handwritten notes were in the offender’s handwriting. One note concerned the offender’s troubled relationship with her own mother. Another was concerned with RM and her development. Another was concerned with feelings and emotions of the offender.

On 1 November at the Newcastle Department of Forensic Medicine Dr. Timothy Lyons carried out an autopsy on the body of RM. Dr Lyons concluded that the direct cause of death was consistent with drowning. This conclusion was based mainly on a small amount of froth present in the airways and the lungs being wet (pulmonary oedema), a feature seen in some infant water deaths. He noted the absence of significant violence or injury. Minor injuries he noted as likely to be attributable to prolonged resuscitative measures. Subsequent investigations were non-contributory including histological examination of tissues from major organs, microbiological studies and a toxicological screen.

The offender was transferred to the James Fletcher Hospital in Newcastle where she remained from 1 November until 8 November following which she was discharged from the hospital into police custody.

Dr Steele, Psychiatric Medical Superintendent at JFH, formed the opinion during her stay at the hospital that the offender was not then suffering from any mental illness. She was prescribed and received no medication. She was given a complete physical examination including blood tests, and a CT scan. No abnormalities were found. On his observations, and taking into account a history related by the offender’s daughter, LG, Dr Steele formed a diagnostic impression “that there was the possibility of recurrent episodes of psychosis with a marked theme of religiosity”.

The offender told doctors at James Fletcher that she had no recall of the event except that she walked down to the river with the child and sat on the river bank. She later woke. On regaining consciousness she realised she was sunburnt. She saw the baby floating in the water. She ran to the bridge and jumped in. Police took her from the water.

After the offender was discharged into police custody on 8 November she was refused bail. The offender was spoken to by police at Taree Police Station on 9 November. She declined to be interviewed and the conversation was terminated.

The offender is a 45-year-old female, having been born on 1 March 1960 in Belgium. She left school at the age of 14 years and married at the age of 17 years. In 1987 the offender migrated to Australia with her husband Christiaan, and their then 6-year-old daughter LG. When LG was aged 14 years, the offender and her husband split up.

In or around January 2003, CM moved into the Dural Caravan Park. He met and after a time, commenced a relationship with the offender. Each of them maintained their own caravans.

In or around June/July 2003, the offender became pregnant to CM. CM says that when she found out she was pregnant the offender was surprised but seemed happy to have the baby. CM and the offender decided to leave the caravan park and move to Queensland. After travelling to Queensland where things did not work out, they began travelling south ending up in Rainbow Flat Caravan Park in the Taree area for about 6 weeks. The offender began looking for a farm to rent.

In or around November 2003, the offender and CM, with their black and white border collie ‘Gismo’, moved into a rented farm property at 49 Brown’s Close, The Bight, Wingham. This property was part of a 350 acre dairy farm owned and run by Vernon and Nicole Brown. The western boundary of the property was the Manning River, and the house at Number 49 Brown’s Close was a fibro cottage situated some 450 metres east of the river through grazing paddocks.

On 6 April 2004 at the Manning Base Hospital the offender gave birth to RM. The birth was unexceptional. The offender was discharged from the hospital on 8 April and returned with the child to the property at Brown’s Close.

On 12 May, the Early Childhood section of the Mid North Coast Area Health Service started providing Early Childhood Services to the offender through the Child and Family Health Nurse sister Leanne Hegarty. Sr. Hegarty visited the offender at home on approximately a monthly basis. Sr. Hegarty recorded RM’s development as being normal. On the last recorded visit Hegarty made to the offender and RM on 6 October the baby could roll from back to front and was just starting to sit. The baby was not crawling. The child was in good health and every indication was that she was well cared for by the offender.

Following the birth of RM the relationship between the offender and CM began to deteriorate. Apparently the offender formed the view that CM, who was only aged 23 years, was immature and irresponsible.

In July 2004, CM moved out of the premises at Brown’s Close but remained living in the Wingham area and visited the offender and RM almost daily. CM’s parents also travelled from Sydney to visit their son and the offender and RM. The last such occasion was from 24 September 2004 until 28 September when they stayed on the Brown’s Close farm. CM’s mother, LM, observed on this occasion that RM was at a normal stage of development and appeared to be a healthy weight. RM would lie on her stomach and lift her body up with her arms. LM did not see the baby roll, and said she was unable to sit up unsupported at this time.

After the birth of RM, the offender contacted her daughter LG in Sydney. The offender invited LG and her son B to stay with her on the farm at Wingham. On 25 October 2004 the offender rang LG and told her that it was raining and that it was not worth coming up. The visit was postponed.

On that same day the offender went to CM’s home and invited him to her place for a couple of drinks. CM accepted and went around to Brown’s Close for about four hours. He noted that it was unusual for the offender to leave the baby unattended, however briefly.

During this time the offender consumed 3 bourbon and coke pre-mixed 440ml cans. At this time drinking alcohol was unusual for her. CM and the offender had what he described as a deep conversation about their beliefs and desires. He did not see his daughter on this occasion. The offender told him that she was asleep and that she would not wake her. CM did not see the offender or RM after this. He did however speak with the offender on the phone a number of times.

At about 5 pm on the same day, 25 October, CM’s mother, LM received a telephone call from the offender. The offender was in a distraught state. She was so upset that LM could not at first understand what she was saying. When the offender calmed down somewhat she told LM that she just wanted someone to talk to and that she was the only person she had. The offender said, “I just felt like I needed a drink and I drove into the bottle shop at Wingham and I saw CM. He came over to me and we had a discussion which ended up heated.” When LM said to her “I thought CM said that you weren’t going to drink in front of RM,” the offender replied “I haven’t had a drink in all these months and I bought a six pack of bourbon and coke. I just felt like a drink today.” After speaking to LM for about half an hour to 45 minutes, the offender appeared to calm down.

Following this telephone conversation, LM spoke to her husband, who rang CM and spoke to him. CM rang her just after midnight and told her everything was OK. LM understood that CM had spoken to the offender.

On 26 October, the offender telephoned her daughter LG. In that conversation the offender seemed to LG to be quite disturbed. She spoke to LG about a dream concerning LG’s son B. The offender said to LG “B is dying and his soul is dying.” LG said her immediate thoughts were that her mother was having “an episode .”

LM rang the offender around 5 pm on the afternoon of 26 October and asked her how she was. The offender replied, “I am good, I feel so much better having talked to you.” LM noted the difference in the offender’s mood from the previous day. She said that it was as though the previous day’s conversation had never happened. While they were speaking LM could hear RM in the background. The offender told her that RM was now able to sit up on her own.

On one occasion at around this time, the offender told LM over the phone that “RM is teaching me new things about natural food healing remedies. This happened in the garden when she reached out for the spinach.”

The same day the offender divested herself of a newly purchased stereo and collection of about 100 CD’s to the Browns. She said words to the effect of “I have lost interest in music” and “ the baby doesn’t like listening to music”. She also spoke of an intention to get rid of a petrol mower and buy an electric one because the baby did not like the noise of the petrol mower.

About 6.30am on the morning of 30 October Vernon Brown was at his dairy when the offender came over with the baby in the stroller. Both mother and child appeared to Brown to be in good health. He saw the offender again and spoke to her briefly later that same morning when she stopped and asked him about fence posts so that she could make a herb garden.

The same day CM telephoned the offender. The offender told him how happy she was living on a farm with animals around her and being in a natural environment. The offender said “I want the family back together, I am sick of this time wasted in arguments, how do you feel about that?” CM said in effect that a reconciliation was what he wanted. On 31 October, the day of the drowning, CM tried to ring the offender on about four occasions. The telephone was not answered.

4 The offender has a minor criminal record which assumes little, if any, significance for present purposes. In 1997 she was dealt with in the Local Court for an offence of mid-range PCA and driving without a licence. Pecuniary penalties were imposed in respect of those offences and related offences of resisting a police officer in the execution of duty and malicious damage to property. In 2000 a s 10 bond was imposed upon her in respect of an offence of common assault. All of these offences appear to have occurred at a time when the offender was intoxicated.

5 I have been provided with some insight into the offender’s general character from statements which have been tendered in evidence. Her former partner CM described the offender as “a person with a good heart, [who] wants peace and a peaceful environment, she is kind, caring, honest. She is a decent person …[She] was a devoted mother…During the time I have known [her] I thought that some of her ideas were unusual however I have not seen anything that would lead me to believe that she was unstable”. He also observed that she was not the sort of person who would be naked outside the house. His mother, LM, said that she formed a good relationship with the offender, whom she described as “a lovely person”.

6 The offender has been employed, on an intermittent basis, in a number of occupations. She has variously worked as a cleaner and as a gardener, as well as working in a factory and in a nursery. Her employment opportunities have been limited in recent years, in part it would appear because of the debilitating effects of chronic fatigue syndrome and depression from which she has suffered.

7 The offender’s landlords, the Browns, whose statements were tendered before me, expressed the view that the offender doted on her baby. They remarked that the baby was very well looked after and always looked immaculate. They said that the offender frequently took the baby for walks down to the river. The deceased was in good health and was progressing normally at the time of her death.

8 The evidence also suggests that the offender was looking positively towards her daughter’s future development into childhood. So much is apparent from one of the notes which was discovered in the offender’s home to which reference has already been made. Furthermore, Vernon Brown gave evidence during the course of the sentence proceedings. He told me that the offender had top-dressed an area outside her cottage so that the deceased could have lawn on which to play. She also told Mr Brown that she was going to buy a horse for her daughter when she got older. He described her as “the best mother I have ever known”.

9 I am satisfied that the offender dearly loved her child and that she looked after her with complete devotion. If anything, she was somewhat obsessive in the manner in which she cared for her.

10 Of considerable significance to the present proceedings is the offender’s mental condition at the time of the offence. In order to properly appreciate that issue it is necessary to also sketch some historical details. In November 1998 the offender was admitted to Hornsby Hospital following a suicide attempt. She had taken an overdose of medication which had been prescribed by her GP for insomnia. At the time she reported having had suicidal ideation for a period of two years following her divorce from her husband. Her husband was said to suffer from chronic alcoholism but it appears that the offender also drank heavily during the marriage. He also physically abused her. The offender informed Dr Nielssen, who examined her at the request of the Crown, that the suicide attempt had been “triggered by a visit to her family in Belgium, which she said undermined her image of an ideal childhood”. As a result of her hospitalisation, she was prescribed Zoloft which she took for about 12 months.

11 In 2003 the offender received therapy and counselling over a three month period from a psychiatrist, Dr Blows, following the disintegration of her relationship with her daughter, LG. At some stage prior to 2003 LG assaulted the offender. Subsequently apprehended violence orders were taken out by each of them against the other. For some considerable time thereafter there was no contact between them. Contact was only restored following the deceased’s birth although relations remained strained, apparently because LG did not “trust [the offender] with her grandson”.

12 LG provided a statement in which she described the volatile nature of her relationship with the offender. After her parents separated, she lived mainly with her mother. The relationship undoubtedly deteriorated when LG became dependent upon illicit drugs. It may be that this affected her perception of events. Nevertheless she stated that her mother suffered bouts of depression. She said that at those times she “would lie in bed for a couple of weeks and cry and read self-help books”. She described her as at times going “off on a religious tangent”. She related several bizarre incidents which had religious overtones. One such occasion occurred when the offender found out that LG was having a son. The offender told her that “he is a very special boy, he is the chosen one, the fate of the world lies in his hands”. LG said that the offender also told her that “you need to be careful while you are carrying this boy. Jesus will do anything to kill you.” It was outbursts like these which prompted LG not to leave her son in her mother’s care.

13 In the present context it is pertinent to observe that CM stated that the offender had wanted to call their baby Jesus if it was a boy. It was his view that “[s]he selected this name in a defiant stance against religion”.

14 LG provided details to medical staff whilst the offender was in James Fletcher Hospital of other strange episodes in her mother’s history. One of the psychiatrists, Dr Raggett, provided a statement in which he reports being told by LG:

[o]f episodes of depressed mood, tearfulness and apparent preoccupation with religious themes. These episodes lasted for a number of weeks at a time. [LG] also described a time two years previously when her mother had wanted to take her to meet [one of the] “12 Apostles”. [LG] also reported that her mother had persuaded [a] church to allow her to preach to the congregation. She had taken this opportunity, however on stating her views that Jesus was a rapist who had raped his sister, she was escorted off stage by security.
In view of this information and the possibility that this alleged conduct represented a prior psychotic episode, RG was asked in detail about this incident and her religious beliefs. She stated that she had been raised in a strict Catholic family, attended church and believed devoutly in the Catholic faith until her marriage when she stopped going to church but retained her belief in God. She stated that her marriage had been traumatic and abusive and following separation from her husband she underwent a period of self reflection which included a re-examination of her religious views. She stated that she then believed that the Bible stories were a “Fairy Story” and she became angry at what she believed was the church’s deceit. She did not deny her daughter’s account of what happened at the church. She reported that she had wanted to express her anger and may have said “Jesus is a rapist”. She said this was a general insult rather than an actual belief. She told me that she did not believe that Jesus existed at all.

15 The Statement of Facts also include a reference to the discovery of notes at the offender’s home, concerning her troubled relationship with her own mother. The offender’s feelings towards her mother may partly explain her emotional turmoil at the time of the offence. A letter which was addressed to her mother is in the following terms:

I am not going to drink and I am not going to keep smoking to be able to cope with what you’ve done to me.
Therefore I am going to deal with you here and now. You never wanted me when I was born so I have felt alone and lonely all my life. You did not show me or let me feel any love at all. You thought that I was just another burden on you. You never had time for me. Everything I ever loved as a child you took away from me. This made me believe that I was afraid to lose everything I love. This is why I have had nightmares about bad things happening to the things I love. The fear that you put into me made me afraid to the point of paranoia. You took away my childhood for all you praised me for was the work I did. You prided yourself on the fact that I could work “like a horse”. You confused me to think that having you proud was love. So I worked even harder on the farm [which her parents owned]. Then you would break me down and humiliate me by saying to people that I was a dirty animal when it came to housework I was good on the farm but useless when it came to housework you said. You shamed me and belittled me. At school I never measured up for you always pushed me to do better you made me quit school because of that and made me believe that I could not do anything. I remember that I asked a lot of questions when I was little and you shut me down for it was too much for you to answer my questions. You never explained anything about sex to me and made me believe that sex was dirty bad and wrong. When I ‘fell in love’ with Christiaan you called me a slut, a whore, mansick, poisoned by lust and you envolved (sic) the whole family to come and humiliate me. You let my Uncle suggest that he would have my vagina sewed up if I was his daughter. Later, on my wedding day you wished misery upon me.
You mother, set me up for my life of misery that I had so far for you physically and emotionally abused me. You did not allow me to feel the feelings I had for your (sic) did not let me cry, laugh or be angry.
On the weekends when my sister and I had to wash the dishes you didn’t event (sic) allow us to whisper.
You beat me when I was a little toddler you burned my toys.
You said that YOU were going to raise your kids well mother you raised me to hell and back.
I hate everything you have done to me.
It made me over responsible, perfectionist, scared of making mistakes, unable to be in a relationship, take on more than a horse can handle afraid of love and live (sic).
You also made me believe that I deserved everything that happened to me as some sort of punishment for mistakes I made.
But most of all, Mum, you scared me every time you said you were going to kill yourself for I loved you and I did not want to lose you.
I am not going to cry for the rest of my life over milk I have spilt. I am going to heal my life and try very hard to mend things with the people I love.

16 As the Statement of Facts make clear, the offender’s behaviour in the period prior to her baby’s death was somewhat curious. Her conduct after the event, and particularly following her admission to hospital, was quite bizarre. It included her sucking her thumb, wailing loudly and sniffing at the clothes of staff members. She did not speak for several days. When she resumed speaking she informed Dr Steele that “she was grieving [over] her daughter’s death and that she was aware that she would not see her daughter again”. She also said that shock had prevented her from being initially able to speak. Dr Bhattacharyya, who also saw her, reported that “her grieving for the loss of her child appeared to increase with time”.

17 As noted earlier, the offender remained in James Fletcher Hospital for about a week during which time her mental state was carefully observed. She was only released after doctors satisfied themselves that she was no longer suffering from a mental illness. She was assessed not to have any formal thought disorder, delusions or cognitive impairment.

18 As I have already said, Dr Nielssen examined the offender at the request of the Crown. He then prepared a report in the light of that examination and after having had access to her background history. His assessment of her mental state was that she was suffering from a “psychotic illness (either a relapsing schizophrenia-like illness or a form of bipolar disorder with periods of elevated mood and severe depression)” and “a disabling level of depression (which she had suffered) from as early as 1996”.

19 He continued:

[LG] reported episodes of abnormal behaviour and beliefs that were typical of psychotic illness in the years before the alleged offence. Dr Richardson, an experienced and very capable psychiatrist, concluded that RG’s presentation at Manning River Base Hospital was due to a psychotic disorder. The accounts of RG’s recent conversations and behaviour, including undressing before walking to the river with her child, was consistent with the onset of psychotic illness. The account of her presentation at Taree Hospital was consistent with a catatonic state, in which patients are usually mute. …
The rapid recovery from the acute phase of the illness may have been due to the single injection of potent antipsychotic medication, which is often enough to alleviate catatonic states.
I believe that on the balance of probabilities RG was acutely mentally ill at the time of her daughter’s death and has the defence of mental illness available to her. I believe her illness resulted in an acute state of disorganised thinking and behaviour during which she was not aware of the nature and quality of her actions, or that her actions were wrong. …

20 Dr Westmore prepared a report in respect of the offender at the request of her solicitors. He observed that:

[t]he descriptions of her by others at the time she was found in the river suggest a severe behaviour disturbance in addition to anything she did leading to the child’s death. I refer to the history where it is reported that she was found naked in the river and severely sunburnt.
The diagnosis of her mental state at the time of this incident is unclear. On the balance of probability however she was acutely disturbed, possibly depressed and/or psychotic. The fact that the symptoms did not take a chronic course argues against the diagnosis of an illness such as schizophrenia and the absence of an illicit drug history excludes the diagnosis of a drug induced psychosis.
Medical notes made shortly after she was admitted refer to her being depressed and suffering psychotic symptoms…
I believe this woman qualifies for the defence of substantial impairment. It is likely, on the balance of probabilities, that she was suffering an acute disturbance of her mental state, possibly of a psychotic type at the time her child died.
This would represent an abnormality of mind which, again on the balance of probability, would have substantially impaired her capacities. Again being precise as to which capacities were disturbed and to what degree is difficult because of the paucity of her history. If she did suffer an acute psychological decompensation, possibly into a psychotic state, then all her capacities may have been adversely affected by such a condition.

21 The offender also told Dr Westmore that she had been sexually abused as a child by her older brother. She told him that she had only recalled in recent times that such abuse had occurred.

22 Dr Westmore also gave evidence before me. It was his opinion that the offender committed the offence whilst “in a state of psychiatric distress”. He pointed to the fact that it “occurred within the first twelve months of the post-partum period…[whilst] she was depressed”. He also referred to the fact that “there were psycho-social stressors, she had a young infant and was trying to support the child without the assistance of the child’s father…She was very unhappy with how that relationship was progressing.”

23 Dr Westmore also confirmed the views of others that the offender had a tendency to religiosity which he described as “an abnormal preoccupation with religious themes which is out of context with the person’s social and cultural background”.

24 Dr Westmore informed me that the offender has had only intermittent contact with psychiatrists whilst she has been in custody. He pointed out that it is “quite hard to get regular psychiatric assistance in custody at present”. He said that she has not been on medication for the last twelve months or so.

25 Although he could not identify any indication that the offender is presently suffering from any psychotic symptoms, he described her mood as “subdued”. He diagnosed her as “currently suffering from a complicated grief reaction”. He went on to say:

[t]he emotional distress she described and demonstrated occurred specifically in the context of questioning about future pregnancies. She became very uncontrollably tearful. She, herself has some insight into the fact that her grieving process has been hampered somewhat by her current situation and an inability that she has to express her grief for fear, I think, of alerting other inmates about her circumstances.

26 The offender has been in protective custody during the course of her incarceration because of the nature of the offence which she has committed. It is apparent that her present custodial circumstances have to some extent restricted her access to psychiatric and educational facilities within the gaol. I will take that factor into account in assessing the appropriate sentence to impose upon her: R v Durocher-Yvon (2003) 58 NSWLR 581.

27 Dr Westmore expressed the opinion that there was nothing to indicate that the offender represented an on-going risk to the community. As he put it, “this has been a very specific event which has occurred probably for some very specific reasons”. He said however that there remained a risk of self-harm and further bouts of depression. Upon that subject he observed that, “much will depend on how she comes to terms with what has occurred [and her capacity to resolve her grief] and I think a lot’s going to depend on how much support she gets, both professional and otherwise, when she’s returned to the community”.

28 There is a body of evidence which establishes that the offender will be provided with considerable support when she returns to the community. The Browns have remained in contact with the offender during her incarceration. They have also been looking after her personal effects including her dog and a motor vehicle. Moreover Vernon Brown told me that he and his wife are prepared to provide accommodation upon their farm for the offender upon her release. His family will also provide on-going support for her and will raise the alarm if they form the view that the offender is “going off the rails”. They are also prepared to provide transport to enable the offender to travel into Taree, a trip of some 20 minutes, to access psychiatric or any other professional assistance. I have received evidence from the offender’s solicitor, Michael Crozier, and a letter from Dr Richardson, who saw the offender immediately after the offence, about the availability of services provided by the Taree Community Mental Health Service. Mr Brown, whose family have lived in the area for five generations, expressed the view that there is no reason to believe that the offender would not be accepted back into the small community of Wingham upon her release. The offender told Dr Westmore that she believed that returning to the farm may indeed assist her in the grieving process.

29 LM, who also gave evidence, informed me that she has visited the offender on a regular basis whilst she has been in custody. She guaranteed to provide the continuing support of herself and her husband for the offender upon her release. I note that she and her husband have been at court to support the offender during the course of the proceedings.

30 LM also told me that in her view the offender does accept responsibility for her actions although she continues to have difficulties coming to grips with the enormity of what she has done.

31 I am required to have regard to the relevant statutory framework that pertains to the sentencing of offenders and to the principles enunciated in the authorities which bear upon the issue. It is common ground that I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

32 In determining the appropriate sentence I must also have regard to the various aggravating factors set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance. The only aggravating factors to which I need to have regard for present purposes are subs (2)(k) and (l); that is, that the offender, as a parent, abused a position of trust which she held in relation to the victim and that the deceased was a vulnerable victim by reason of her age.

33 As I have said, it is important to bear in mind the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be suitably punished: see R v Troja (CCA, 16 July 1991, unreported at 2) and R v McDonald (CCA, 12 December 1995, unreported). In R v Hill (1980) 3 A Crim R 397, Street CJ said:

It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 402)

34 In R v Blacklidge (CCA, 12 December 1995, unreported), Gleeson CJ, with whom the other members of the Court agreed, said:

The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. (at 3-4)

35 I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. My task in this respect has been made easier because the parties are in agreement as to those matters which are presently relevant.

36 The first matter that I take into account as a factor that ameliorates the otherwise appropriate sentence is the offender’s plea of guilty. I have already referred to the circumstances in which the offender entered it. The plea was entered notwithstanding the fact, which I am prepared to accept, that she has no present memory of the events which led to her daughter’s death. As I understand the situation, she recognises that the admission that she drowned her baby provides a proper basis for her to accept responsibility in law for her actions.

37 It is also a material factor that in pleading guilty to manslaughter, the offender abandoned any reliance upon the “defence” of “mental illness” which was clearly open to her on the expert evidence. Such a “defence”, if made out, would have absolved her of any criminal responsibility for her conduct. It is not easy to evaluate with any precision the significance, in a practical sense, of the offender’s decision to discard this “defence” because the establishment of it would not necessarily have seen her released from custody immediately. Regardless of that consideration, I am of the view that exposing oneself to a conviction for a serious criminal offence, when the act in question may well have been committed in circumstances where according to law no culpability should be attached to it, is a significant matter and I intend to approach the matter upon that basis.

38 In the normal course of events the plea of guilty could not be said to have been entered at the first reasonable opportunity. In saying that, I am mindful however of the difficulty of applying that test to a person who is suffering from the kind of mental condition which afflicts the offender. In any event the offender’s decision to plead guilty still has significant utilitarian value in view of the fact that it obviated the need for a trial and for witnesses to give evidence, for some of whom the experience of having to do so would have been an ordeal, particularly given their relationship with the deceased. She also admitted her guilt when first spoken to by police. In those circumstances the offender has “facilitated the course of justice”: R v Cameron (2002) 187 CLR 65. She is thus entitled to an appropriate discount: see R v Thomson & Houlton (2000) 49 NSWLR 383.

39 I am prepared to extend an additional measure of leniency to the offender for the contrition which she has displayed. Her plea of guilty and her actions in the aftermath of her daughter’s death are strongly suggestive of a mother who deeply regrets taking the life of her precious daughter. Furthermore, she will undoubtedly continue to regret her actions for the rest of her life. In this context, I have also had regard to the evidence of LM and Dr Westmore.

40 In all the circumstances, I am satisfied that this is a case, in view of the offender’s mental condition at the time of the offence, in which considerably less weight than normal should be given to the factor of deterrence, both personal and general: R v Scognamiglio (1991) 56 A Crim R 81; R v Engert (1995) 84 A Crim R 67; R v Wright (1997 93 A Crim R 48. I re-iterate that the evidence suggests that the offender’s condition was such that she was “mentally ill” at the relevant time. Indeed, the Crown Prosecutor, very properly in my view, characterised the offender’s “degree of impairment” as being in “the upper range”: see, generally, R v Hoerler (2004) 147 A Crim R 520. Accordingly it is common ground that the offender’s moral culpability is, for that reason, significantly reduced.

41 So far as the matters identified in s 21A(3) are concerned, I have already referred to some matters in passing but I expressly record that I have taken into account the matters identified in pars (e), (f), (i), (j) and (k). To that list may be added par (b), namely that the offence was not “part of a planned or organised criminal activity”.

42 In view of the evidence of Dr Westmore I am also prepared to take into account pars (g) and (h); namely, that she has good prospects of rehabilitation and that she is unlikely to re-offend, so long as she has proper access to psychiatric facilities and counselling when she returns to the community and continues to have adequate support networks in place.

43 I also accept the evidence of Dr Westmore that the offender does not present an on-going danger to the community. It can be said with confidence, bearing in mind her age, that she will not be in a position to repeat the conduct which has brought her before the court on this occasion. The evidence tends to indicate that her long-term prospects of recovery are good and that the psychosis which afflicted her at the time of RM’s death was only temporary.

44 To assist me in the task of imposing sentence, I have had regard to a number of what are said to be somewhat comparable cases. I remind myself however of the limitations of placing undue reliance upon them: R v Morgan (1993) 70 A Crim R 368. It was submitted that I can have some regard to sentences imposed in cases of infanticide. That offence is created by s 22A of the Crimes Act. It recognises the impact which childbirth may have and applies in specified circumstances where a mother causes the death of a child who is under the age of 12 months. Somewhat curiously the maximum penalty which is provided is exactly the same as it is for manslaughter. In Victoria, for example, the maximum penalty is five years. See, eg, R v Azzopardi [2004] VSC 509, in which a community based order was made in respect of an offender who drowned her five week-old baby in a bath whilst suffering from post-natal depression.

45 In both R v Cooper [2001] NSWSC 769 and R v Pope [2002] NSWSC 397, judges of this Court imposed bonds on offenders who pleaded guilty to infanticide. Although the evidence in the present case does not meet the specific statutory requirements for that offence, I am satisfied that the approach taken in those cases provides some, albeit fairly limited assistance as to the appropriate disposition of this matter. I remain mindful of course of the fact that the current offender is not being dealt with for the offence of infanticide: see R v Grierson (CCA, 28 October 1996, unreported).

46 In R v Li [2000] NSWSC 1088, a bond was also imposed upon a mother who pleaded guilty to the manslaughter of her young child upon the basis of substantial impairment. She was suffering from endogenous depression at the time. She killed her child so that he would not be left behind when she committed suicide, as indeed she had contemplated doing.

47 In R v Sette [2000] NSWSC 648, a two year sentence which was fully suspended was imposed on an offender who had been convicted of the manslaughter of her 15 month old daughter by reason of substantial impairment.

48 In R v Richards [2002] NSWSC 415, the offender pleaded guilty to the manslaughter of one of her children on the same basis. She also pleaded guilty to the attempted murder at the same time of her other two children who were aged 6 and 11. In respect of each of the offences of attempted murder the offender was sentenced to fixed terms of just over 15 months (the time which she had spent in custody). A bond was imposed in respect of the offence of manslaughter. I observe that that offender also had available to her the “defence” of “mental illness”.

49 In R v Dawes [2004] NSWCCA 363, the offender pleaded guilty to the manslaughter of her 10 year-old autistic son on the basis of substantial impairment. She was suffering from a major depressive illness at the time. A Crown appeal against the imposition of a bond was dismissed. A majority of the court held that the sentencing judge had been in error in not imposing a full-time custodial sentence but for discretionary reasons dismissed the appeal. The third judge found that there had been no error.

50 Understandably the facts in each of these cases are quite different from the present case but they nonetheless provide some guidance for present purposes. In the final analysis however I must exercise my own sentencing discretion in the light of the facts of the present case.

51 Although I have not received a victim impact statement, I wish to record the court’s sympathy to all those who have suffered understandable anguish and a sense of loss as a result of the tragic death of a baby whose life had barely begun.

52 It is necessary to impose a sentence which properly reflects the objective gravity of the offence in question and which gives effect not only to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999 but also to the maximum penalty prescribed by the legislature. A defenceless baby has died at the hands of her mother who was bound to protect and nurture her and upon whom she totally depended. Although the offender’s abnormality of mind diminished her responsibility for her act it does not negate it. Consistently with what was said by the majority of the Court of Criminal Appeal in Dawes, the offender’s plea acknowledges that a human life has been taken as a consequence of a deliberate and voluntary act, performed either with an intent to kill or to cause grievous bodily harm or with reckless indifference to human life. That being so, it is my view that nothing less than a full-time custodial sentence can be countenanced.

53 I am prepared to make a finding of “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. An appropriate period of supervision will facilitate the offender’s reintegration into the community following her release from what is her first time in custody. Moreover, it will enable her to have the benefit of ongoing psychiatric treatment in an environment which will assist her ultimate rehabilitation.

54 Finally, I accept the very proper concession made by the Crown that the sentence to be imposed should be fashioned in such a manner as to enable the offender to be immediately released upon parole.

55 RG, for the offence of manslaughter, I sentence you to a non-parole period commencing on 31 October 2004 and expiring on 2 February 2006, with a total term commencing on 31 October 2004 and expiring on 30 October 2007. Accordingly, I direct that you be released on parole today upon the following conditions:

1 That you attend at Dr Richardson’s office at the Manning Health Service at 3 pm on 3 February 2006.

2 That you undertake any treatment directed by Dr Richardson, or by someone at his direction, and that you attend any appointment specified by him, or by someone at his direction, in the course of such treatment.

3 That you abide by any conditions specified by Dr Richardson, or by someone at his direction, in the course of such treatment and that you agree to take any medication that he, or someone at his direction, may prescribe from time to time.

4 That you report to the Office of the Probation and Parole Service at Taree within seven days.

5 That you accept the supervision of that office during the currency of the parole period.

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