R v Richards

[2002] NSWSC 415

CITATION:	R v R F Richards [2002] NSWSC 415
CURRENT JURISDICTION:	Common Law Division Criminal List
FILE NUMBER(S):	SC 70015/02
HEARING DATE(S):	27/03/02 10/05/02
JUDGMENT DATE:	17 May 2002
PARTIES :	Regina Raigan Frances Richards (Accused)
JUDGMENT OF:	Kirby J

COUNSEL :	D Howard (Crown) A Shand QC (Accused)
SOLICITORS:	G Rowlands - DPP (Crown) Conditsis & Assocs (Accused)
CATCHWORDS:	Criminal Law - Sentence - Manslaughter - Substantial Impairment - Attempted murder - Reduced culpability - Appropriate punishment non-custodial - Bond
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Savvas v The Queen (1995 183 CLR 1 R v Storey (1997) A Crim R 519 Olbrich v The Queen (1999) 199 CLR 270 The Queen v Blacklidge (unreported, CCA, 12.12.95) R v Georgina Marie Hill (1981) 3 A Crim R 397 Scognamiglio v R (1991 56 A Crim R 81 R v Sette [2000] NSWSC 648 R v Thomson & Houlton [2000] NSWCCA 309 Pearce v The Queen (1998) 194 CLR 610
DECISION:	Ref para 78

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

KIRBY J

Friday 17 May 2002

70015/02 - REGINA v Raigan Frances RICHARDS

JUDGMENT ON SENTENCE

1 KIRBY J: On 27 March 2002, Mrs Raigan Frances Richards was arraigned on three counts, namely:

· First, that on 7 February 2001 at Wyee in the State of New South Wales, she did murder Reily Shayne Richards

· Secondly, that on 7 February 2001 at Wyee in the State of New South Wales, by administration of carbon monoxide, she did attempt to murder Mahon Richards.

· Thirdly, that on 7 February 2001 at Wyee in the State of New South Wales, by administration of carbon monoxide, she did attempt to murder Braedy Richards.

2 Mrs Richards pleaded guilty to the second and third counts of attempted murder. She pleaded not guilty to the first count, murder, but guilty of manslaughter upon the basis that, at the time of the offence, she was substantially impaired by an abnormality of mind. The Crown accepted that plea in full satisfaction of the indictment.

3 It remains for me to now pass sentence. In order to do so, I must determine the facts relevant to the sentencing discretion (Savvas v The Queen (1995) 183 CLR 1). Where facts are adverse, they must be proved beyond reasonable doubt. Where they favour Mrs Richards, it is enough that they should be established on the balance of probabilities (R v Storey (1997) A Crim R 519; Olbrich v The Queen (1999) 199 CLR 270).

4 Reily Shayne Richards was a baby aged almost 21 months. Mahon was aged eleven years and Braedy six years. Mrs Richards was the mother of each child. The circumstances in which Reily died, and the attempt was made upon the lives of Mahon and Braedy, are not in doubt. Mrs Richards, driven by a delusion, which I will shortly describe, attempted to end their lives and her own life by introducing carbon monoxide fumes into the cabin of the motor vehicle in which they all slept. Only Reily died.

5 The circumstances giving rise to this tragedy are complex. However, they are important. They shed light upon the state of mind of Mrs Richards and the extent to which is can be said that she was morally blameworthy.

Background

6 Mrs Raigan Richards was born on 9 March 1963 at Lithgow. Her mother separated from her father soon after her birth. Her mother later remarried. Mrs Richards gained the Higher School Certificate. She excelled in music. She enrolled in a post graduate degree at the Conservatorium of Music. However, she discontinued that degree after about 18 months, distracted by other things. Nonetheless, she worked as a musician. She played the piano and violin. She also taught music.

7 In January 1989, Mrs Richards married Mr Anthony Duff. Mahon was born on 3 November 1989. She claimed that the marriage was violent from the outset. She told a psychiatrist that she persisted in the marriage because she was a Catholic. She believed that it was her obligation to make the marriage work. She ultimately got a job which, in her words, gave her the courage to leave the marriage. She and Mr Duff were divorced on 7 October 1993.

8 Mrs Richards returned to Lithgow. She lived with her mother and step-father. She again worked as a musician. She met Mr Mark Richards, whom she later married. Braedy was born on 10 August 1994. Reily was born on 18 May 1999. Again, according to Mrs Richards, the marriage was characterised by domestic violence. The police came to the house a number of times.

9 Mr Richards enrolled in a programme in 1998 to assist him in curbing such violence. The programme lasted twenty weeks. According to Mr Rowe, who ran that programme, Mrs Richards reported a significant improvement in their marriage as a consequence. Mr Rowe also provided counselling to Mr and Mrs Richards from September 1999 until the break up of their marriage on 22 December 1999. In the course of these sessions Mr Rowe, on occasions, observed outbursts from Mrs Richards and an absence of self-control. He had some concern for the safety of the children. When Mr Rowe became aware of accusations by Mrs Richards against her husband, Mark Richards, in February the following year (which I will shortly describe), he notified the Department of Community Services, DOCS, of his concern.

10 The argument which led to the separation of Mrs Richards and her husband on 22 December 1999, was violent. Mrs Richards pressed charges against her husband. She said that as a result he was placed upon a good behaviour bond. She obtained, as well, an Apprehended Violence Order on her own behalf and on behalf of her parents.

11 Mr and Mrs Richards had, until their separation, conducted a business tinting the windows of motor vehicles. Discussions began concerning the division of property, including the business and their home.

12 In February 2000, Braedy, who was then five and a half years, reported to Mrs Richards conduct which he attributed to his father. It alarmed Mrs Richards. The conduct, without repeating the detail, suggested paedophilia by her estranged husband directed at both Reily and Braedy.

13 Mrs Richards reported the matter to DOCS. She obtained an interim order stopping access to the children by her estranged husband.

14 A Joint Investigative Team, comprising police and officers from DOCS, began an investigation. Mr Richards was interviewed. He denied the allegations. The Joint Investigative Team made a number of inquiries. It interviewed Braedy on 9 March 2000. As a consequence of its investigation, it recommended that Mr Richards should have supervised access to his children.

15 Mrs Richards was devastated by that recommendation. She endeavoured to engage the interest of politicians who had been vocal on the subject of child abuse.

16 A short time after the first allegations had been made, Mrs Richards stated that Braedy reported further conduct by her estranged husband, Mr Mark Richards, this time involving a somewhat older boy who lived next door. Mrs Richards passed this information to the Joint Investigative Team. That Team interviewed the neighbouring boy on 30 March 2000.

17 On 2 April 2000, Braedy reported a further and more disturbing matter. He described a place called "Uncle Jack's place" and activities within that place. Those activities involved not only Mark Richards, but Mrs Richards' first husband, Mr Tony Duff. Braedy had been taken to that house, as had the boy next door.

18 Mrs Richards formed the belief that there was a paedophile ring, and that both her former husbands were part of that ring. She reported the matter to her neighbour, the mother of the child said to have been abused. The material placed before me includes a statement from that woman. That person recognised, from the description of the incident provided by the children, the occasion which they were describing. She knew that on that occasion she, not Mrs Richards' former husband (as the children had suggested), had provided transport to and from the particular location. That information was passed to Mrs Richards. However, it was not accepted. Rather, Mrs Richards referred the issue back to Braedy. Braedy reaffirmed his account. Mrs Richards chose to believe her child, as she said in evidence before me. She gave the following testimony: (T59)

"I maintain, I believe what my children told me, that's all I maintain."

19 Mrs Richards interpreted the neighbour's apparent acceptance of what was happening as an indication of complicity in what was taking place.

20 On 3 April 2000, Mrs Richards reported what she knew to the Joint Investigative Team. Indeed, she went to the Joint Investigative Team the next day. She formed the impression that they would not listen to her. On 9 April 2000, according to the account she gave to Professor Quadrio, psychiatrist, she telephoned DOCS, reporting the following:

"My first husband was involved, my second husband, and now it was my neighbour."

21 The Joint Investigative Team, interviewed Mrs Richards for some two and a half hours. The day following, a female officer from the Joint Investigative Team came to see Mrs Richards. She suggested that Mrs Richards needed counselling. She took her to the James Fletcher Psychiatric Hospital. She assured her that her children would be looked after.

22 Mrs Richards remained a patient of that hospital from 12 April 2000 until 28 April 2000. The material before me incorporates a report from the Clinical Director, Dr Clark, of 28 April 2000, which includes the following:

"Mrs Richards is currently diagnosed with a psychotic disorder (professionally Delusioned Disorder) and is accepting treatment for same, though she seems to have no other insight into her illness. This diagnostic viewpoint has been confirmed at a senior consultant level. It does not directly reflect on the outcomes of ongoing JIT (Joint Investigative Team) inquiries."

23 Mrs Richards was discharged into the care of her cousin upon the following conditions, as set out in the report of Dr Clark:

· "that continued psychiatric care be provided by the Mental Health Team at Liverpool, this transfer of care has been accepted,

· that Mrs Richards does not undertake care of the children or have contact with them, unless directly supervised by a responsible adult, until countermanded by her psychiatric carers following appropriate review of issues of clinical well-being and risk."

24 Mrs Richards was not happy with aspects of her treatment at the James Fletcher Hospital. She, and those who supported her, wanted a second opinion. Arrangements were made by her solicitor in the Family Court proceedings for her to see Dr Jonathon Carne, psychiatrist. She saw Dr Carne on 5 April 2000. He prepared a report in which he stated his view in these terms:

"From my review of the medical records it seems that Ms Richards was suffering from a delusional disorder, a psychotic illness in which there is a loss of reality testing and the possession of an irrational set of beliefs not amenable to logical analysis and without any cultural basis.
In my opinion Ms Richards is probably suffering from a delusional disorder possibly caused by the hypomanic phase of bipolar affective disorder (manic depression), however I am not in a position to judge whether her allegations are true."

25 Dr Carne made the following recommendations:

"1. Ms Richards remains under psychiatric treatment and follows the recommendations of her treating psychiatrist.
2. Strenuous efforts are made to investigate the veracity of Ms Richards allegations, as that has a considerable bearing on her psychiatric diagnosis. My present feeling is that her beliefs are largely delusional and that the paedophile ring is probably a product of her delusional system."

26 The Family Court proceedings came before the Registrar on 31 May 2000. The purpose was to determine orders for interim access. The fathers were given access on most weekends. In the case of Mr Mark Richards, access was granted upon the basis that it would be supervised because of issues of domestic violence. Mrs Richards was also told that she would lose custody unless she was supervised by a responsible adult. Her mother and step-father therefore moved to her home in Wyee to exercise that supervision.

27 Mrs Richards continued to pursue the matters that had come to her notice through DOCS. In the meantime, the Family Court ordered a psychiatric assessment of Mrs Richards by an independent psychiatrist appointed by the Court, pursuant to Order 30A of the Family Law Rules. A file note made by DOCS on 27 September 2000, included the following:

"Regan said she could not understand the point of having a district officer if future allegations were not investigated. Regan expressed concern when she was reminded of what had been stated at the PPM on the 23.8.00. At that meeting she was advised that no further sexual assault notifications would be investigated prior to the completion of the Section 30A Assessment by the Family Court. The reason given was because of concerns previously expressed by JIT (Joint Investigative Team) when investigating a sexual assault notification that they felt that Braedy had been coached and he is at risk of systems abuse if continually interviewed. Further that it was important that the Family Court Assessment not be contaminated."

28 In September 2000, Mrs Richards approached an organisation, ASCA, which assists persons dealing with sexual abuse. Ms Mullinar, a founding member of that organisation, described Mrs Richards as being "in despair". She did not believe, however, that either Mrs Richards or her children were at risk. Through the organisation Mrs Richards was given emotional support and assistance. Ms Mullinar said this:

"The way she spoke of her children, it was as though the children were her life."

29 In January 2001, Mrs Richards was interviewed by Dr Wootton, the psychiatrist appointed by the Family Court. Mrs Richards was filled with optimism after that interview. She believed that she was assured of custody.

The Family Court Hearing

30 Mrs Richards had been less than happy with the solicitor who was appearing for her in the Family Court proceedings. The hearing, which would determine the issue of custody, was set down for the week beginning Monday 5 February 2001. On the Friday before that hearing, the solicitor for Mrs Richards withdrew. A replacement was found, Mr Rod Powe. Mr Powe was hampered, however, by not having access to the file.

31 On Monday 5 February 2001, Mr Powe sought an adjournment. Mr Mark Richards and Mr Tony Duff were each represented by a solicitor and barrister. The adjournment was refused. On Tuesday 6 February 2001, the report of Dr Wootton was disclosed to the parties. That report does not form part of the material before me. The Family Court, in the context of its proceedings, regarded the report as a confidential document. The parties were not provided with copies. Rather, they, and their advisors, were allowed to read the report at Court.

32 Mrs Richards read the report with disbelief. In the report, she was characterised as a person suffering from a serious psychiatric condition, requiring a further period in hospital of 12 months. Dr Wootton was of the opinion that she should take anti-psychotic medication. He recommended that custody of the children should be awarded to Mr Mark Richards for a trial period of six months.

33 Mrs Richards spoke to her solicitor, having read the report. She asked what hope she had of regaining custody at the end of the 12 months. According to the account she gave to psychiatrists, she was told, "Not good".

34 The case was adjourned until the following day, Wednesday 7 February 2001. Mrs Richards was to bring the children to Court. It was expected that they would then be handed over to her former husband.

35 Mrs Richards was entirely unprepared for this blow. She was in a state of panic. According to her mother, she cried hysterically. Once home, she discussed with her parents "clearing out". Her parents counselled her against that course. She recognised that it was not an option. She had no money. She accepted that she would be found. She also understood that, having been found, she may never see her children again.

The Offences

36 At some point that evening, Mrs Richards determined that the only solution for her and the children was escape to heaven, through death. The alternative, in her mind, was handing the children to someone whom she believed had sexually abused the children, and would do so again. She told Professor Quadrio this:

"I had to save them. I sat and discussed it with Mahon. I know I had no right to ask him but I was pushed over the edge. I said to Mahon, 'we'll go to sleep'. He said 'does it hurt'. I said 'no'."

37 Mrs Richards now recognises how inappropriate and wrong it was to converse with Mahon in this way. In evidence before me, which I accept, she said this: (T64)

"Q. ... would you think he was giving you permission to do what you did?
A. No I didn't think he was giving me permission. I asked him. I was in a state of panic. When I asked him, I look back now, how can you ask a 10 year old child whether he wants to live or die. It is impossible. I had no right to ask him, no right whatsoever, he's a 10 year old child for God's sake. You have no idea of the state of my mind, the panic and desperation. You don't go round asking 10 year old kids whether they want to live or die."

38 At 2.00 am on 7 February 2001, Mrs Richards drove to remote bushland at Wyee, with her three children. She took with her a length of hose and a can of petrol. The can of petrol she described as "back up". She connected the hose to the car's exhaust, and by this means introduced carbon monoxide fumes into the cabin of the vehicle. She woke to find that Reily had died. She and the boys were alive. Mrs Richards gave the following description to Professor Quadrio of what she then did: (p 24)

"'Then I woke up and Reily was the only one gone, so I thought I had to finish saving them. It was all about saving the kids.' She took the petrol and set light to it. It caught fire but the car didn't explode. Then she 'felt the heat and felt that I couldn't do it'. She picked up Reily's body and 'we ran'. The car exploded and blew up."

39 Mrs Richards and the two boys were given a lift to their home by a passing motorist. The police were called. Mrs Richards described to the police exactly what she had done. She held nothing back.

40 She was taken with Mahon and Braedy to the Gosford Hospital. The children were examined. They had no physical abnormality. They were treated for carbon monoxide poisoning with oxygen. They were discharged from hospital into the care of the Department of Community Services.

41 Mrs Richards was arrested. She remained in hospital for some days, being transferred to the gaol on 9 February 2001.

The Objective Seriousness of the Offences

42 Determining an appropriate sentence requires both an understanding of the objective seriousness of the offences committed, as well as the personal circumstances of the offender. There is, of course, nothing more precious than human life, and nothing more poignant than the loss of a young child. Manslaughter is the felonious taking of human life. Attempted murder is the attempt to take the life of another. In this case, the attempts, of course, involved two lives, both young children.

43 However, there are, as you would expect, degrees of culpability in which there are a number of variables. In The Queen v Blacklidge (unreported, CCA, 12 December 1995), Gleeson CJ said this: (at p4)

"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."

44 The plea of guilty to manslaughter was entered upon the basis that Mrs Richards was, at the time, substantially impaired by an abnormality of mind. The Crown accepted that plea. That plea involves the partial defence which was formerly referred to as diminished responsibility. In the same case, the Chief Justice made this comment upon that partial defence: (p 4)

"... The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility but it does not excuse the act ( R v Low (1991) 57 A Crim R 8)."

45 The partial defence has application in the context of manslaughter (s23A Crimes Act 1900). It does not apply to the offences of attempted murder. Nonetheless, similar issues arise in the context of those offences in determining the objective criminality which they involve on the part of Mrs Richards.

46 It becomes important, therefore, to investigate the state of mind of Mrs Richards at the time she committed these offences. To what extent is it reasonable to attribute culpability or moral blameworthiness to her, given her state of mind?

The Psychiatric Opinions

47 The psychiatrists on this issue speak with one voice. Although I do not have the report of Dr Wootton of February 2001, it is plain that he regarded Mrs Richards as psychiatrically disturbed and in need of hospitalisation and anti-psychotic medication.

48 Mrs Richards, shortly after this tragedy, was taken to hospital. She was admitted to the Mandala Clinic, a psychiatric unit attached to the Gosford District Hospital. She was examined by Dr Darcy. Dr Darcy furnished a report of 7 February 2001, which included the following:

"I formed the opinion on what I heard from her that she was probably suffering from delusional beliefs..."

49 Professor Quadrio described the mental state of Mrs Richards in these words: (p 32)

"On the basis of this psychiatric assessment, my conclusion is that at the time of the offence Ms Richards was suffering from an abnormality of mind, a Delusional Disorder, such that she was unable to understand exactly what she was doing in rational terms. In an irrational way she knew what she was doing. She believed that she was saving herself and her children from the paedophile ring. She held that conviction absolutely and acted on it, absolutely believing it to be true. This belief was a delusional one and Ms Richards acted on that delusional belief. At the moment that Mrs Richards undertook to kill herself and her children, she did not have the capacity to understand that what she was doing was wrong. She truly believed that she was saving her children."

50 Professor Quadrio offered the opinion that Mrs Richards had available to her the defence of mental illness, which, were it established as a probability, would render her not guilty of the offence. She said this: (p 35)

"It is my opinion that Ms Richards was not responsible for her actions in relation to these offences because she is suffering from a mental illness. That mental illness is a psychotic one and is well recognised psychiatrically as constituting an abnormality of mind."

51 Professor Quadrio added: (p 35)

"In the event that the Court may not accept that defence, it is my view that Ms Richards must be seen to be suffering from an abnormality of mind that constitutes substantial impairment."

52 The Director of Public Prosecutions qualified a forensic psychiatrist, Dr Olav Nielssen, to examine Mrs Richards and express a view. The view reached by Dr Nielssen did not differ from that of Professor Quadrio. In his report of 21 September 2001, Dr Nielssen said this: (p 9)

"I believe Ms Richards has the defence of mental illness open to her. She has a defect of reason arising from a disease of the mind, in the form of the delusional belief that there was a conspiracy involving both of her former husbands, her neighbour and other members of the community to sexually abuse her children. At the time of the offence, she was deprived of the knowledge that killing the children and committing suicide herself were wrong, as she believed that the children would be returned to a situation in which they would be subjected to sexual abuse. Moreover, in her acutely distressed state, she was unable to reason with any measure of calmness or composure about the consequences of her actions."

53 Dr Nielssen added: (p 9)

"Ms Richards would also be able to raise the defence of substantial impairment', as she has an abnormality of mind arising from an underlying condition that impaired her judgement, perception of events and capacity for self control."

54 Dr Lisa Brown, a visiting psychiatrist at the Mulawa Women's Prison, has seen Mrs Richards on a number of occasions since her incarceration in that prison on 9 February 2001. Dr Brown said this: (p 4)

"... Although she is now able to recognise the wrongfulness of her behaviour, it is my opinion, based on my contact with her, that Ms Richards was unable to recognise this at the time and that she acted on a firmly held belief that she and her children would be better off dead than to allow them to be at further risk of harm."

55 Returning to the issue which I identified at the outset, namely, the moral culpability which attaches to Mrs Richards' actions, Mrs Richards was, in the unanimous view of these doctors, so substantially impaired that she might have raised the defence of insanity. She has, however, not done so. Rather, she has, as mentioned, raised, and the Crown has accepted, the partial defence of substantial impairment by reason of abnormality of mind. Nonetheless, it is obvious that the impairment under which Mrs Richards laboured was so gross as almost to amount to insanity.

56 The dilemma which confronts a sentencing Judge in these circumstances, was eloquently described by Street CJ in R v Georgina Marie Hill (1981) 3 A Crim R 397, in these words: (at 402)

"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."

57 A sentence ordinarily serves a number of objectives, one of which is deterrence, both of the individual and of the community. Here, I believe there is little need for personal deterrence so far as Mrs Richards is concerned. For the reasons I will provide shortly, the risk of re-offending is low. Her case, moreover, does not provide a suitable vehicle to deter the community at large (Scognamiglio v R (1991) 56 A Crim R 81). Barr J in R v Sette [2000] NSWSC 648, said this: (para 42)

"42. A sentence can only have a deterrent effect to the community at large where the community can appreciate that there is a real degree of culpability on the part of the offender. Where the actions of the offender approach the morally innocent, little is demonstrated to the community by way of deterrence in the imposition of sentence."

Prospects of Reoffending

58 Once the crisis was over, Mrs Richards quickly made significant progress in her mental health. The psychiatrist who saw her in prison, Dr Lisa Brown, furnished a report on 2 March 2001, which included the following: (Exhibit 1)

"I am not aware that she poses a risk to herself or to others if she were to be released on bail."

59 Dr Nielssen described the nature of Mrs Richards' illness. His description provided some insight into the likely prognosis. It may be accepted that at least one of her children, and a neighbouring child, said things to her which suggested sexual abuse. The delusion which various doctors, including Dr Nielssen, diagnosed, had its source in the way in which Mrs Richards used this material, ultimately drawing the conclusion that both husbands were involved in a paedophile ring, as well as a neighbour. Mrs Richards, at the time that conclusion was drawn, had almost a decade of experience of living with Mr Duff and then Mr Richards. One assumes, since it was not mentioned, that nothing came to her notice in that time which suggested paedophile conduct on the part of either. This was the context within which she received accounts from a child who was then five and a half years old, and from another child a little older, but described as somewhat backward. Mrs Richards was right to take these accounts seriously. However, the accounts given by young children of such matters may be unreliable. Indeed, as Mrs Richards acknowledged, she recognised that aspects of her son's account were unreliable. She said this: (T 60)

"... Braedy has made disclosures like 'He's putting sticks up my bottom'. I know that's not possible or otherwise his bottom would be bleeding, but I can only repeat what he told me."

60 Nonetheless, recognising the unreliability of that aspect of her child's account did not shake Mrs Richards' faith in other aspects of the accusations which were made, first against Mr Mark Richards and then against Mr Anthony Duff. Nor did the rebuttal of at least part of these allegations, provided by her neighbour, undermine her faith in the account that she had been given. Likewise, the conclusions of the Joint Investigative Team offered her no solace. It is in this context that the doctors diagnosed delusions. She had a fixed belief, which in her mind was unshakeable.

61 Mrs Richards' prognosis, in these circumstances may, to a degree, depend upon the prominence which issues of child abuse have in her life in the future. When she saw Professor Quadrio, she thought that she might devote her time to exposing paedophile rings, and DOCS, whom she believed had let her down. Since these were the very things which triggered her delusions and the psychotic episode, and led to these crimes, that preoccupation, were it to occur, would be a matter of concern.

62 However, more recent evidence from Dr Nielssen, which I accept, and from Mrs Richards herself, suggests that the preoccupation has receded. She saw Dr Nielssen on 23 April 2002. Dr Nielssen reported on his examination as follows: (p 1)

"In response to questions to establish her current beliefs, she answered that she had 'no desire to pursue it, as it would only harm the kids' and said 'I won't harp on it or do anything about it'. She said 'I would never be in that situation again ... what I did was in a state of panic ... I had no support from anyone'."

63 Dr Nielssen therefore assessed Mrs Richards as presenting a relatively low risk of reoffending. He gave the following evidence: (T 17/18)

"In terms of the prediction of dangerousness itself as outlined in my report, it's not a very easy area to discuss based on scientific knowledge because the research is inconclusive and again it's very difficult to generalise research on groups of people to individuals, but having said that, I'd say that Ms Richards has a relatively low risk for the reasons that the situation in which the offence occurred is unlikely to recur and from what she's been through and the treatment she'd had and will likely to get will modify her response in future. Secondly, she's not a person who carries a high risk of violence or harm to others anyway, through having a history of anti-social or violent conduct or substance abuse leading to loss of control of behaviour. Thirdly, even though delusions are fixed they can respond to some extent to treatment, even just a counselling to, and I believe that she has gained some insight regarding what other people believe are delusional beliefs from the way she skirted around the subject during our interview when her current beliefs were very much an area of interest. ..."

64 Dr Nielssen also gave the following evidence: (T 20/21)

"A. ...She hadn't previously had any exposure to counselling or care other than marital counselling and what sounded like an acute episode in her early adult life. I think she would handle things differently and I've previously given evidence on the risk being very much higher during the first episode if you like of mental illness as opposed to later episodes."

65 Dr Nielssen elaborated upon the last answer in the following evidence: (T 21)

"A. ... the first episode of psychotic illness prior to any contact with treating services carries a far higher risk than subsequent episodes and this is based on my own unpublished data but it's about a 40 fold higher risk."

66 I accept this evidence. Mrs Richards, on the evidence, has made a very good recovery from her mental illness. I believe the prospects of rehabilitation to be excellent. I accept that, with appropriate treatment and supervision, Mrs Richards presents a low risk of reoffending.

The Subjective Case of Mrs Richards

67 Mrs Richards is a woman aged 39 years. She is intelligent, accomplished and refined. She gave evidence before me. She presented as an articulate and reasonable woman, who had plainly made a substantial recovery from the acute mental illness which afflicted her.

68 Mrs Richards was, on the evidence before me, a woman who was devoted to her children. Ms Patti Hammond, of the Probation and Parole Service, said this: (Exhibit D)

"Enquiries revealed that Ms Richards is considered to be a well organised, capable, caring and devoted mother. She devoted time to her children and developed close relationships with them; she loved her children and they loved her."

69 Mrs Richards has no previous convictions. She has been, throughout her incarceration, a model prisoner. I accept unreservedly that Mrs Richards suffers very significant remorse.

70 Mrs Richards acknowledged at once responsibility for her crimes. She pleaded guilty at the first available opportunity, that is, once the Crown had accepted her plea of guilty to manslaughter on the basis of substantial impairment. The sentence should be approached upon the basis of the maximum discount of 25% for an early plea of guilty (R v Thomson & Houlton [2000] NSWCCA 309).

The Appropriate Sentence

71 Mrs Richards entered custody on the day of the offences, 7 February 2001. She has remained in custody for a period exceeding 15 months. That custody has, in part, been the more onerous because her crimes involved a child, making it necessary that she be held on protection.

72 In fixing upon a sentence, it is necessary that separate sentences be identified in respect of each count. In determining such sentences I should have regard to the principle of totality, giving consideration at the same time as to whether the sentences should be concurrent or cumulative (Pearce v The Queen (1998) 194 CLR 610).

73 The task of fixing an appropriate sentence in this case is, for the reasons identified by Sir Laurence Street, not an easy one. The case, on any view, is most unusual. I have considered, as one of the many alternatives, a further custodial sentence. However, in the unusual circumstances of this case, and taking account of the 15 months that Mrs Richards has already served, I do not feel that a further sentence of full time custody is called for.

74 Rather, I believe that it is appropriate that Mrs Richards should enter a Good Behaviour Bond for a period of 5 years. Under Pt 8 of the Crimes (Sentencing Procedure) Act 1999, it is necessary that such a bond should contain a number of conditions. It is also necessary that I should explain those conditions to the person who is to be the subject of the bond, in this case Mrs Richards.

75 Here, it is appropriate, in my view, to impose conditions as to supervision. Recommendations have been made by various psychiatrists that Mrs Richards should be supervised and have counselling. Mrs Richards herself has said that she is anxious to have counselling. As a consequence of the conditions I intend to impose, she will be obliged to submit to psychiatric care, as directed by those responsible for her supervision.

76 Before passing sentence, it is perhaps appropriate that I should address some remarks to others affected by this tragedy. Mr Mark Richards has lost a precious daughter. He also has the torment of knowing what his son, Braedy, has been through. Mr Anthony Duff has the same torment in respect of Mahon. The families of both Mr Richards and Mr Duff have, no doubt, been affected, and affected profoundly. It is gratifying to see that neither child suffered physically. It is also encouraging that the Victim Impact Statement suggests that Mahon is now doing very well.

77 One can only hope that Mr Richards and Mr Duff approach the future with some appreciation of the vicious and unreasonable nature of mental illness, and the need for generosity and charity in their dealings with Mrs Richards, keeping at the forefront of their minds the paramount interests of the children.

Order

78 Raigan Frances Richards, I sentence you as follows:

1. In respect of the second count, the attempted murder of Mahon Richards, you are sentenced to a fixed term of imprisonment commencing on 7 February 2001, and expiring today, 17 May 2002.

2. In respect of the third count, the attempted murder of Braedy Richards, you are sentenced to a fixed term of imprisonment, concurrent with the previous term, commencing on 7 February 2001, and expiring today, 17 May 2002.

3. In respect of the offence of manslaughter, you are required to enter a Bond (under s9 of the Crimes (Sentencing Procedure) Act 1999), for a period of 5 years commencing today, 17 May 2002, and expiring on 16 May 2007; that Bond to include the following conditions:

· First, that you will appear before the Court, if called upon to do so, during the term of the Bond.

· Secondly, that you will be of good behaviour, and will inform the Registrar or the Clerk of the Court of any change of residential address.

· Thirdly, that within 24 hours of your release, you will report to the Adult Probation and Parole Service, at a location to be stipulated, and will submit to its supervision and directions during the term of your Bond.

· Fourthly, that you undertake such psychiatric care as the Adult Probation and Parole Service may arrange or direct.

79 The consequence of the imposition of these various conditions as part of the Bond is that if you fail to comply with them, or any of them, you may be brought back before the Court and sentenced according to law. The sentence that may be imposed may include a number of sanctions, including imprisonment. In the event that there is a breach of the Bond, a warrant may be issued for your arrest. The Court may, unless there are reasons excusing such breach, proceed to enforce the Bond in the ways which I have stipulated.

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Last Modified: 05/21/2002